
Gass ~r^S7 
Book / ' - ' 



DEBATES BEFORE PARLIAMENT 



RELATIVE TO THE ENACT- 
MENT OF A COMPULSORY 
WORKING CLAUSE INTO 
THE BRITISH PATENT 
STATUTES 



931 




fsAa 



WASHINGTON 

GOVERNMENT PRINTING OFFICE 

1912 



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i' 



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x'^^ 



Gathered by CLARENCE E. KAY, Ci.erk, 

AND Printed for the Use of the Committee on Patents of the 

U. S. House of Representatives 

April 22, 1912 



6 W5 




PATENTS AND DESIGNS BILL. 



[Commons, Mar. 19, 1907.] 

The president of the Board of Trade (Mr. Lloyd-George, Carnarvon 
Boroughs), in asking leave to bring in a bill to amend the law relating 
to patents an designs, said: ^^This bill introduces a good many im- 
provements which have been found necessary in the working of the 
patent laws in this country. The main object is to simplify and 
cheapen procedure. The bill will make provision for the grant of 
patents of addition, there will be additional checks against invalid 
patents, and a cheaper procedure for the revocation of patents. 
These will be introduced in the interest of the poor inventor, for, 
although it often suits a rich and powerful company to have compli- 
cated and expensive machinery, it very often involves ruin for a poor 
inventor. I propose, therefore, to introduce a series of conditions 
which, I hope, will effect a considerable cheapening of procedure. I 
do not know that we can ever make the patent laws cheap as long as 
the fees of counsel and experts are high, but something can be done 
in order to meet the difficulty. I also propose to introduce later on 
a consolidation bill, and if that bill goes through the grand committee 
on trade I think it will be possible to amalgamate it with the present 
bill. But the main object of this bill, after all, is to prevent the pat- 
ent laws from being used for the hindrance and suppression of British 
industrial development. The object of the patent laws is to reward 
ingenuity, and by so doing to encourage invention and to promote 
British industry. Unfortunately, however, they have been used in 
many respects to discourage the British inventor and to destroy many 
British industries. What is happening at the present moment ? Out 
of 14,700 patents issued last year, 6,500 are foreign! I do not object 
to that, but a good many of these patents have been taken out not 
for the purpose of working the patents in this country but for the 
purpose of preventing their being worked. That I consider to be an 
abuse of a privilege conceded* by British laws. There is a still worse 
abuse, on the whole I think it is the worst. The British inventor who 
takes out a patent is very often a poor man who has been able to get 
his patent financed up to a certain point. After he has started and 
set up works and purchased machinery there comes a poAverful for- 
eign syndicate which lias found tliere is something in liis patent which 
they imagine is covered by an invention they have already patented — 
for these patents are very often in exceedingly vague terms. This 
syndicate then brings to bear the whole machinery of their powerful 
organization to crush the inventor. He is brought before the court 
of first instance, and if he wins there he is taken to the court of appeal, 
and then dragged up to the House of Lords, by which time all the 
capital he has been able to raise for the purpose of working his patent 



4 .PATENTS AND DESIGNS BILL. 

is expended in law costs, and the patent which ought to have been an 
encouragement to his ingenuity has simply become a trap for his ruin. 
That I consider to be a thoroughly flagrant abuse of the privileges 
conferred by British institutions upon foreigners on equal terms with 
Britons, and I think it ought to be put an end to. The mere fact 
that it has not been put an end to is in itself a proof of the long- 
suffering of the average Briton. An attempt was, I think, made by 
the late Government to deal with this problem. I am not criticising 
their method — for after all in these things we must proceed experi- 
mentally — when I say that the attempt was a failure, because of the 
very expensive character of patent litigation. Mr. Levinstein, who 
took a great interest in this question, brought an action under the act 
in order to expose the futility of the machinery. It cost him about 
£4,000, and that naturally discouraged further experiment in the 
same line. Therefore, there is very little use trusting to that act. It 
is much too expensive. The suitor has to go before the judicial com- 
mittee of the privy council, a very costly proceeding. It is clear, 
therefore, that some other means must be found for putting an end 
to the abuse. I propose to apply three or four methods. In the first 
place, I propose to simplify the procedure of compulsory license, and 
instead of the applicant having to go before the judicial committee 
of the privy council, as at present, he will go, first of all, before the 
controller and afterwards before a judge specially selected by the 
Lord Chancellor, who will be habitually dealing with patent cases. 
This method will tend very considerably to shorten the hearing of 
cases, because they will be dealt with by an expert judge. A second 
method is that any applicant can go to the controller three years after 
the granting of any patent and apply for the revocation of the patent 
on the ground that it has not been adequately worked within the 
United Kingdom. There is another point of great importance. Big 
foreign syndicates have one very effective way of destroying British 
industries. They first of all apply for patents on a very considerable 
scale. They suggest every possible combination — for instance, in 
chemicals — which human ingenuity can possibly think of. These 
combinations the syndicates have not tried themselves. They are 
not in operation, say, in Germany or elsewhere. But the syndicates 
put them in their patents in obscure and vague terms so as to cover 
any possible invention that may be discovered afterwards in this 
country. What happens ? A British inventor makes a bona fide dis- 
covery. He attempts to patent it. He probably secures a patent. 
But the moment he does so this powerful foreign syndicate brings an 
action against him for infringement of patent. They include possibly 
as many as 15 or 16 counts in their indictment ; they employ the ablest 
and consequently the most expensive counsel at the British bar and 
the best scientific experts. The result is that the poor British in- 
ventor, before there is time for his invention to take root or to become 
a success, is simply overwhelmed by this tremendous combination. 
In that way many British industries have been wiped out. There are 
two ways in which the bill proposes to meet that state of things. One 
is by compulsory working and the second by forcing powerful syn- 
dicates — home, of course, as well as foreign — to deposit samples, where 
the patent office demand them, or else their application will be refused. 
There is another way in which foreign patents work in restraint of 
British trade. Before a manufacturer, say, in the boot trade — a trade 



PATENTS AND DESIGNS BILL. 5 

in which this grievance has been particuhirly felt — can use the patent 
he is obhgecl to sign a kind of lease for 20 years, during which period 
he is prohibited from using any other machinery. There may be a 
considerable improvement in machiner}^ (hscovered meanwhile by a 
British inventor or by some other foreign inventor, but the manufac- 
turer, under the concUtions of his lease, mil not be allowed to put the 
improved machinery into his works. It was thought that such con- , 
ditions, acting in restraint of trade, could be set aside; but according 
to the decision of Mr. Justice Wills the patentee has the right to impose 
any conditions, however unreasonable, he pleases. There are many 
people in this country working under these impossible conditions, 
which at any time may have the most serious consequences to the 
industries of tliis country. I propose that in future these conditions 
shall be nugatory. I have not time now to deal with the objection 
that this is a protective measure. I think it is in the interest of free 
trade. I am not afraid of foreign competition as long as British trade 
is free to fight it. I would free British trade from impossible condi- 
tions abroad and from equally stupid tariff systems at home. At the 
present moment many British industries are bound hand and foot by 
the working of the patent system. Many British industries have been 
completely wiped out by privileges conceded by British institutions 
to foreigners. I propose that these bonds shall be cut, and that the 
British industry shall be made perfectly free to engage on equal terms 
in the severe struggle with its competitors." 

Motion made and question proposed '^That leave be given to bring 
in a bill to amend the law relating to patents and designs" (Mr. 
Lloyd-George). 

Mr. BoNAR Law (Camberwell, Dulwich). I wish to- 

Mr. Speaker. Does the honorable gentleman rise to oppose ? 
Mr. BoNAR Law. No, sir. 

Mr. Speaker. Then the honorable gentleman can not speak under 
the 10-minutes rule. 

Question put, and agreed to. 

Bill ordered to be brought in by Mr. Lloyd-George and Mr. Kearle}^. 

PATENTS AND DESIGNS BILL. 

'^To amend the law relating to patents and designs," presented 
accordingly, and read the first time; to be read a second time upon 
Monday next, and to be printed. [Bill 121.] 

[Commons, April 17, 1907.] 

Order for second reading read. 

Mr. Bowles (Lambeth, Norwood) said that early that morning, 
about 12.15, the patronage secretary put down certain bills for dis- 
cussion for "to-morrow." Amongst those bills was the patents bill, 
which appeared in the orders of the day. What he desired to ask 
was whether when those bills were put down by order of the house 
for one day it was competent for the Government after the house 
had adjourned to secure their advance by one day. 

Mr. Speaker. I must take the responsibility for having made the 
alteration. The truth is that it escaped the patronage secretary 



6 PATENTS AITD DESIGNS BILL. 

and myself that it was past midnight, and consequently ''to-morrow" 
became "to-day." I think the house generally understood that we 
should take this bill on Wednesday. 

Motion made, and question proposed, ''that the bill be now read a 
second time." 

\ Sir F. Cawley (Lancashire, Prestwich), in supporting the second 
reading, said the first patent, as far as he could discover, was granted 
in 1626 and recited that — 

Because much time and labor and money has been spent by Walter Drummond, and 
because the invention may be of use and advantage to the State, the King grants a 
monopoly, but should the said Walter Drummond fail to reduce to practice within 
three years his scheme of patent, the said patent shall then lapse. 

From that it was perfectly clear that the patent had not been granted 
to the inventor for his ingenuity alone, but also for his services to the 
State in introducing a new manufacture to the realm. It appeared 
to him that those conditions were just, and ought to govern our 
present practice, and that no patent should be granted without a 
patentee's being required to work his invention in this country. If, 
however, all countries did as we did, that was, grant a patent to 
anybody and everybody who applied there would be nothing to object 
to; but when all other countries took a different view he thought 
there was not much to be said for our present practice. In Germany, 
if a patent was not worked within three years, it could be revoked 
and declared void. In France, if a patent was not worked within 
two years it could be revoked. In fact, in practically every industrial 
country, including Japan, patentees had to work their patents, or 
to get them worked within a certain time of their being granted, or 
their grant might be revoked. We were the only country in Europe 
that allowed a patentee to take his grant away and work it where he 
liked or sell it to whom he liked. The result of this careless liberality 
was that foreigners came here and got patents granted them 
without ever having the slightest intention of working them in 
this country. They not only did this, but, aided by powerful 
associations and syndicates, particularly in Germany, they used 
these patents to filch our trade away, and in this, he was sorry 
to have to say, they had often been successful. In 1903 we had 
granted nearly 8,000 patents or monopolies to persons residing out- 
side this country; in fact, more than half the patents taken out here, 
and the mostimportant ones, had been taken out by foreigners. We 
granted a larger number of patents (about 5,000 more) than Germany 
did every year, although the population of Germany was one-third 
greater than our own. Some of these patents were only taken out 
for blocking purposes, and were unscrupulously used when our 
manufacturers wished to make any article which would compete 
with a German production. Others which were of importance were 
taken abroad and were used to start industries there by new and 
improved processes, and so superseded industries carried on in this 
country. Thus our manufacturers suffered great injury and our 
workpeople lost their employment. Although a patent lasted only 
14 years, it was long enough to establish the industry abroad, and 
once established there, with trained labor, experience, and an organ- 
ized system of distribution, it was no easy matter to get it back 
again. What they said was that the granting of a patent, which 



PATENTS AND DESIGNS BILL. 7 

was really a monopoly, was in the nature of protection, and that for 
every monopoly granted there should be a quid pro quo to the State 
granting it. We got no quid pro quo for the monopolies we gave, 
but we allowed tlie person to whom the monopoly was granted to 
produce his patented articles solely abroad; in other words, we ran 
contrary to the doctrine of free trade, not for our own benefit, but 
for the benefit of the foreigner. Most patents that were granted to 
Englishmen were ])robably worked in this country, but they had to 
remember that we had no monopoly of genius in this country, and 
that as the population of America and other European countries was 
440,000,000 and that of the United Kingdom was only 40,000,000, 
we could not expect to produce the same number of inventions as 
they did, and when we considered also that they were advancing in 
their manufacturing capacity by leaps and bounds, it followed that 
the number of patents granted to foreigners would greatly increase, 
and that if the present state of affairs was allowed to continue we 
should not only lose our share of the new industries which were so 
rapidly springing up, but we stood a very great chance of losing the 
supremacy we still held in old ones. The great industrial progress of 
Germany had recently figured very largely in discussions on our 
fiscal system. That Germany had made enormous strides could 
not be denied, and in his opinion the advantages that she had enjoyed 
through our absurd leniency in regard to patents had been one great 
factor in the success which she had attained, in some degree, at our 
expense. The chemical industry of Germany had increased rapidly, 
and now amounted, with allied industries, to something like 70,000,000 
per annum, and part of that trade had been taken away from this 
country. Was it not quite time there should be some close investi- 
gation to see the cause. When it was considered that the process 
of manufacturing aniline colors from coal tar was discovered in this 
country, that the industry was commenced and flourished in this 
country, that w^e were the greatest producers of the raw material 
from which the colors were made, that we had cheap fuel and a favor- 
able, geographical position, and that we were also the greatest con- 
sumers of the finished article, and that we had allowed this enormous 
trade to be taken away from us, it was, he thought, humiliating 
There were in Germany engaged in this manufacture five firms, who, 
employed something like 26,000 hands, and had an aggregate capital 
whose market value was something like £16,000,000 sterling. Most 
of the labor employed in these works was unskilled labor, and was 
the very kind of work which would absorb our unemployed if we only 
insisted that there should be a quid pro quo for the monopolies we 
granted and that they should not be taken away and used to find work 
for foreign labor in foreign countries at the expense of our fellow 
countrymen. It Avas a well-known fact that the foundation of the 
aniline color industry in Germany had been laid by the manufac- 
ture of alizarine, for which a number of patents for working it com- 
mercially had been obtained in this country, with the result that 
everyone was able to make and sell in that country, whilst in this coun- 
try it was a close monopoly, and our dyers were charged an enormous 
price for an article which could be just as well made by us as by 
Germans. The patent for this article has now lapsed, but the busi- 
ness had been so firmly established in Germany both by the scientific 
process of manufacturing and by the organizations for distribution 



8 PATENTS AND DESIGNS BILL. 

that we had not been able to wrest the trade from them. But he 
would like to call the special attention of the house to the question 
of artificial indigo. We employed something like 200,000 people in 
India on the indigo plantations. The Germans had discovered an 
artificial indigo which, on account of its much lower price, was 
superseding the vegetable product. The capital employed would, 
he supposed, be lost, and German labor and German capital employed 
in its stead. In this case it would be seen that we were losing an 
industry which had found employment for thousands of our Indian 
fellow subjects, through granting the Germans a British patent or 
monopoly without imposing upon them any obligation to work it 
in this country. Had we said to them as they said to us: ^^If we 
grant you a patent or monopoly for the sale of this article, you must, 
in return, manufacture the article here," we would by now have had 
large works in this country giving employment to numbers of laborers. 
By our patent laws, as they were at present, we were benevolently 
fostering great industries in Germany, to the detriment of the manu- 
facturers, consumers, and working classes of this country. The sup- 
porters of this measure wanted no interference with free trade. All 
they asked was just and equitable treatment. They held that mo- 
nopolies should not be granted to foreigners to be used to handicap 
us in that competition which was every day becoming more acute. 
Honorable members opposite seemed to think that this was a ques- 
tion of protection. It was not a question of protection. We had 
been granting thousands of patents to foreigners and getting nothing 
in exchange. What was now proposed to be done was to say to the 
inventor: ''We are going to grant you a monopoly of the strictest 
kind possible, but if we do that the country at least ought to have 
some recompense for having done it." The patent ought not merely 
to be a prize to the inventor who applied for it. The country 
where the man was granted protection ought at least to have some 
share in the benefit. If a man obtained a patent in this country he 
ought to manufacture the goods here. He thought this bill would 
go some distance toward stopping foreigners from obtaining an 
advantage in our markets and giving nothing in exchange. 

Mr. Cave (Surrey, Kingston) said that when the second reading of 
the bill was moved many honorable members waited to see whether 
the senior member from Merthyr Tydvil would move the amendment 
of which he had given notice. Clause 10 of the bill, against which 
the amendment was obviously directed, appeared to most members 
of the house to do nothing but justice to British inventors. But 
honorable members opposite seemed to think that there might be 
found in it some trace of that fiscal reform or fair trade of which 
they were so much afraid. However, it seemed that the honorable 
member who had given notice of the amendment was not bold enough 
to move it, and he therefore proposed to put before the house some 
general criticisms of the measure. Under the new rules just passed 
the bill would probably be sent to a standing committee, so that he 
and many others might have no chance of criticizing the details. 
They must, therefbre, call attention to the defects of the bill on the 
second reading; He recognized that the intention of the bill was 
to improve the patent laws, and also that there were many clauses 
which would be of real use to inventors in this country. He did not 
intend to vote against the second reading. But he was a little bit 



PATENTS AND DESIGNS BILI^ 1) 

afraid that, in attomptin<^ to iinprovo the patent hiws and tlie posi- 
tion of the inventor, the bill might make that position worse in some 
respects than it was now. There were clauses in the hill which 
would cast on the inventor, and especially the inventor of moderates 
means, a heavy burden which he would not be very well able to bear. 
The eiFect of these clauses would be to discoura(]je the takin<]^ out of 
patents, and thus many small inventors would be d(!prived of th(^ 
benefits of their ingenuity. He instanced clause 2 with respect to 
the ''deposit of samples in the case of chemical inventions" as a 
serious matter. There were inventions in chemistry which related 
to intermediate processes and which could not be exemplified by 
samples ; and there were other inventions of which samples 
could not be provided without considerable expense. Unless great 
care was taken that clause would be found impossible to work. 
Having taken the opinion of others on the question, he did not think 
that particular provision was necessary, and he was inclined to say 
that on the whole it would be better not to have it in the bill. A 
matter of more importance was clause 6, ''grounds of opposition." 
It provided that the grant of a patent might be opposed on the 
ground — 

That the invention has been described or claimed in any complete specification 
for a British patent which is or will be of prior date to the patent the grant of which is 
opposed, or that the invention has been published in this country prior to the date 
which the patent would bear if granted, or on the ground that the nature of the inven- 
tion or the manner in which it is to be performed is not sufficiently or fairly dwscribed 
and ascertained in the complete specification. 

If this provision were passed, almost any application for a patent 
might be opposed, there being thousands of old specifications lumber- 
ing up the patent office which might be cited in opposition to new 
applications. He was afraid that the clause might lead to many 
useful patents meeting with serious and formidable opposition. 
That would cause very serious expense which many small inventors 
would not be able to bear. It would be found that an application 
for a patent, instead of being, as now, a simple and not very expensive 
matter, would become in many cases very expensive indeed, with the 
result that inventors would be discouraged from taking out patents. 
The same observation applied to clause 9 with reference to ''power 
of comptroller to revoke patents on certain grounds." They knew 
what the competition in trade was — the competition of large firms 
against small ones and of foreign against British firms. These firms 
would pay almost any sum in order to get rid of a patent which 
interfered with their operations. There would be a temptation to 
large firms to use clause 9 as an engine of oppression against men 
who could not a.Tord the cost of defending their inventions. If so, 
clauses 6 and 9 would throw on inventors a very serious burden 
indeed. He knew that was not intended, but he thought that would 
be their elect, and they ought therefore to be carefull}^ considered 
in committee. Another important point was as to the tribunal 
which was to have the decision of these matters. Under the bill, 
as it stood, questions as to the grant of patents, questions of 
revocation, and others, which involved a very careful considera- 
tion of facts and of law, and very often of scientific questions 
which could only be determined by a skilled judge or arbitrator, 
were to be decided by the comptroller. He had not a single 



10 PATENTS AND DESIGNS BILL. 

word to say against the comptroller or against the way in 
which he exercised his functions at the present time, but he was 
an official with administrative duties. He had charge of a very 
important department in which he was certainly engaged in work 
mainly of an administrative character. He was appointed for that 
purpose, and no doubt he found the work heavy enough. Now it 
was proposed to throw on that official, who was not a judge, the duty 
of deciding the difficult and intricate questions which arose on appli- 
cations for and revocations of patents. Only recently there was an 
application for revocation of a patent which occupied seven or eight 
days in hearing before a learned judge. Similar cases would arise 
under the clauses of this bill, and was it really intended that cases 
of that kind should come before the comptroller, who, though a 
very competent official, could not properly undertake the work? 
He did not think that inventors and others interested would be 
satisfied wdth that proposal. There was to be an appeal to one 
judge, whose decision was to be final. He thought every case of 
importance would be appealed. There was no branch of the law 
where appeals were more frequent or so certain to occur as in patent 
cases. If in every important case there would be an appeal, why did 
not the Government take their courage in both hands and provide 
at once that those cases should come before a judge ? Half the ex- 
pense would be saved, a hearing would be had once for all, and a 
decision would be obtained satisfactory to the litigants. Another 
point was that it was not very satisfactory to have appeals taken 
from the comptroller to a law officer. He did not think it was right 
to give judicial powers to the law officers of the Crown; only a judge 
should exercise them. If a patent court, such as he had suggested, 
were set up those appeals from the comptroller's decision which now 
went to the law officers would also go direct to the court. Again, 
let them take the question of actions for infringements of patents. As 
many members knew, a person could bring an action for infringement 
and choose his court — usually the chancery division. But the result 
was that those patent cases which were foreign to the ordinary 
work of the chancery division came now before one judge and now 
before another; and although the cases were disposed of with great 
ability, still that was not the best way of securing consistent decisions. 
These cases also should go to a patent court for which there would 
then be ample work. There were also the interlocutory applications 
in patent cases, which also ought to go before the patent judge. He 
did not say that the patent court must necessarily be always presided 
over by the same judge, who might in that case get into a groove, 
but the judge might be appointed for a year, and another judge for 
another year. He hoped that the Government would consider, 
before the committee stage, the suggestions he had made and dis- 
cover a method by which they could be given effect to. It was true 
that clause 17 provided that all appeals from a decision of the comp- 
troller should be made to such judge of the high court as the lord 
chancellor might select for the purpose, and that the decision of that 
judge should be final. But that did not meet the matter at all, 
because that provision was confined to appeals under this bill and 
would not apply to the existing patent litigation which was very 
heavy indeed. The views which he had expressed were, he knew, 



PATENTS AND DESIGNS BILL. 11 

held by many men of experience in the legal profession and by com- 
mercial men who had a real interest in the matter. 

Mr. Pickersgill (Rethnal Green, S. W.) said he desired briefly to 
call the attention of the president of the board of track^ to an aspect 
of the bill which seemed to him had been overlooked by the board. 
Clause 16 made void conchtions or contracts which extenchMl far 
beyond use of a patented article and would in many cases most 
seriously hamper the licensee in his trade. He was not sure that 
clause 16, as drawn, covered the whole ground, and he thought it 
should be amplified in committee. His main point, however, was 
that clause 16 was not retrospective. He wanted to point out how 
very serious would be the position in which those persons would be 
who were bound by existing contracts and by conditions similar to 
those which this bill would make void in the case of future contracts. 
If the bill became law those persons would be left in a much worse 
position than they were now in; that was to say, they would be 
bound by onerous and oppressive conditions and yet have to com- 
pete with men who coming after the passing of this bill would not 
be hampered in a similar manner. Something ought to be done in 
the interests of those persons. Possibly a remedy might be found 
by extending clause 11, which related to petitions for the revoca- 
tion of patents. He suggested that upon a petition for the revoca- 
tion of a patent the court should take into account the conditions of 
existing contracts similar to those which this bill would make void 
in the case of future contracts. That might be one of the grounds on 
which a patent might be revoked. Of course, he was aware that the 
mere revocation of a patent would not of itself put an end to the 
existing contract or relieve the party to the contract from the onerous 
conditions. But in the case he was supposing it would work out 
in this way. If clause 11 were altered in the direction he had 
indicated the effect would be that, through fear of the patent being 
revoked, such pressure might be brought to bear on the owner of 
the patent that he would be willing to come to reasonable terms 
with the persons bound by these contracts. He hoped that if not 
in this way in some other way means would be found in committee to 
meet the cases of many persons in the country, especially in the 
boot and shoe manufacturing industry, who at the present time were 
bound by the most onerous and oppressive conditions. 

Sir F. Channing (Northamptonshire, E.) said that he approved of 
some of the suggestions which had been made by the honorable and 
learned member for Kingston in regard to clauses 10 and 17, and as 
to the constitution of a patent court, and he hoped that the latter 
suggestion would be embodied in the bill at a later stage or in sub- 
sequent legislation. As to the general scope and character of the 
bill he was convinced that the president of the board of trade had 
endeavored in a comprehensive way to cover many of the difficulties 
that had arisen in regard to patent law and to adjust in an equitable 
manner confficting interests. They were all anxious to give the 
greatest possible encouragement to invention. It w^as part of the life- 
blood of a free-trade country to encourage invention, and there was 
no taint of protection in giving an inventor a guaranty that he w^ould 
be protected in the use of his idea and his property rights in it during 
a reasonable period. The points which had been referred to by the 
honorable member for Bethnal Green were of grave importance in 



12 PATENTS AND DESIGNS BILL. 

framing a law dealing with patents in a free-trade country. The 
manufacturers of a free-trade country ought to, and he believed did, 
welcome every invention to which they could obtain access from 
abroad which would help to develop their industry, earn them larger 
profits, and help the community in which they lived. We in this 
country welcomed ideas and improvements from abroad, but the 
position of the boot and shoe industry at the present moment was of 
singular interest and vividly illustrated what might indeed happen 
in a free-trade country in regard to other trades. They were all 
aware that the old-fashioned methods of hand-sewn work of 20 or 
30 years ago had begun to disappear for some years past, and it 
became a matter of life and death to that industry to avail itself of 
all new inventions in machinery, and especially those produced in 
America. In the Eastern States of America, where this was the 
leading trade, the application of machinery to it had been carried 
to the highest possible point. It had become almost imperative 
that the manufacturers should acquire that machinery for use in this 
country at any cost and risk to themselves. 
\| In consequence of this necessity they had placed themselves, it might 
be said unwisely and without sufficient regard to their own interests 
or to the interest of the community, under the most onerous condi- 
tions to acquire the right to use this machinery. So restrictive and 
so prejudicial to the great industries of this country and to the high- 
est interests of trade and commerce generally were these conditions 
that he contended that there ought to be in a bill like this some 
machinery for dealing with conditions which were wholly prejudicial 
to our trade. What had happened was this: These American manu- 
facturers of machinery required for the purposes of the boot and shoe 
industry had bound themselves together and had accumulated a 
large amount of capital. They had brought their capital and their 
ideas to this country. Nobody grudged them that. He welcomed 
the access of American capital and manufactures to this country. 
But whilst we welcomed new ideas and fresh stores of raw material 
from every part of the world and the influx of capital and the products 
of industry, and whilst we wished to guarantee the fullest patent 
rights which the law granted the inventor for the use of his inventions, 
there was another side to the question. It was one thing to do that, 
but it was quite another for an American company or syndicate to 
come over here and patent not only its ideas but all the ideas of the 
American protectionist trusts and to introduce the most tyrannical 
form of monopoly, restricting the commercial and industrial enter- 
prise and freedom of our manufacturers and reducing them to the 
position of having sold all their liberties as industrial men. Our 
manufacturers would not grudge these men payment for the use of 
their ideas or their full rew^ard for that use. That would be w^holly 
inconsistent with the law^ and traditions upon which the whole edifice 
of British trade had been founded. But the conditions which had 
been imposed in this coercive fashion when it was almost a matter of 
life and death for the British manufacturer to accept anything which 
was in the nature of an improvement of the machinery imported were 
most oppressive. Our manufacturers entered into agreements which 
were to last for 20 years, 6 years beyond the length of the life of a 
patent in this country, and they agreed to continue to pay the royalty 
on any improvement or new attachment whether it was patented or 



PATENTS AND DESIGNS BILL. 13 

not which might be added to that machinery solely at the will of the 
manufacturing company. Without the consent and without the leave 
of the manufacturer, the American syndicate might come and attach to 
the machinery any alleged improvement and they obtained a fresh lease 
of their royalty upon the machinery. Under their contract they not 
only took the right to have the royalty during the period of the patent, 
but they could })rolong the life of their royalty and levy a toll upon the 
industry for an indefinite number of years. Another group of cove- 
nants was also very serious and gave the syndicates and companies 
far more extended privileges than those which the patent laws of this 
country had ever given to any inventor. The patent law debarred 
no one from any access to a new invention, but these companies not 
only provided that their machines should be used in a fair way, but 
the users of them were debarred from using any other machines in 
connection with the machines which had been leased by the company, 
and that again was extended by this process of adding improvements 
and attachments. If the business of a manufacturer was successful 
and some work came in he had no option. He could not go to a 
Biitish maker of machinery oi to one in Belgium, Germany, or else- 
where, but was bound forever, or at least during the period of the 
lease or the prolongation which the syndicates obtained under these 
covenants, to go on obtaining machinery from and dealing with these 
companies. That seemed to him a tremendous and improper expan- 
sion of any right which it was intended to give to any invention by 
the patent laws of this country. Not only that, but if a firm of manu- 
facturers under good advice had expended a large sum in obtaining 
machinery from Germany, that had to be stopped and machines used 
which came under the conditions of the hiring company. Further- 
more, if one of these manufacturers had taken a machine from the 
company which only carried out one of the many operations of the 
industry, he was bound to use no machinery from any other source 
for any of the other operations, but to obtain every detail of the 
machinery used from the syndicate, and any other machinery was 
agreed to be scrapped. Reference had been made to the revoking 
of patents, and there were many processes for declaiing them to be 
invalid, but undei these contracts it was provided that a man should 
continue to pay fees and royalties in cases in which patents relating 
to the machine which he had hired had been revoked or otherwise 
declaied to be invalid. It seemed to him that this was a monstrous 
and intolerable state of things which should be dealt with in a decisive 
manner by legislation. He had seen several leases of machmery 
containing these provisions, and he was assured that some of the 
leases actually contained covenants and provisions requiiing the 
lessee to assent to any subsequent condition which the company might 
impose. He contended that these conditions which had been pressed 
on a great industry amounted to duress. There ought to be a full 
and entire remedy for this state of things, and his honorable friend 
the member for Bethnal Green had said that clause 16 ought to be 
made retrospective. They who were old members of the House of 
Commons were well aware how very difficult it would be to get the 
House of Commons, not to say another place, to assent to a proposal 
canceling existing contracts. Of course, such a course presented 
gieat difficulty. In clause 11 of this bill some atcempt, howevei, 
seemed to be made to move in that direction. If they had the power 



14 PATENTS AND DESIGNS BILL. 

to revoke a patent, not only because the owner of it was not using it 
and affording proper advantages and facilities to the public who might 
use it, it seemed to him that they ought to have a clear and effective 
provision in this clause, and he hoped that in the course of the bill 
through committee such additions might be made to clause 16, which 
seemed very good as far as it went, to prevent as regarded future 
contracts all the injuries to which he had 'alluded. In regard to 
syndicates holding such a powerful position, they ought definitely 
and in teems to bar out such provisions as had been imported into 
these contracts. It was in the interest of the industry of the whole 
community that such a state of things should not exist. If the bill 
were to pass in its present form there were points which some of his 
friends and himself thought were not covered by clause 16, and if some 
of the other clauses were not amended the position would be intoler- 
able. He appealed to his right honorable friend to exercise all the 
ingenuity in his power to defeat what seemed to be a protectionist 
conspiracy to utilize the open door and the generous hearts of a free- 
trade country and to endeavor to secure equal opportunity for the 
development of a great industry so far as it depended on the free use 
of inventions, whether of this country or abroad, to all men who car- 
ried on their business in this country. 

Viscount Turnour (Sussex, Horsham) hoped he would not disturb 
the harmony which had been the feature of the discussion of the bill 
that afternoon by commenting on one or two remarks that had fallen 
from the honorable member who opened the discussion. The hon- 
orable member had assured them that many goods were sold more 
cheaply in Germany than in this country. His only comment on 
that was that it was a remarkable admission for a free trader and a 
member of the Free Trade Party to make in the House of Commons. 
He understood that one of the great planks of the free-trade platform 
was that everything was sold more dearly in a protectionist than in a 
free-trade country. Apparently, however, the honorable member 
did not share the views of the great majority of his party. The hon- 
orable member went on to say that the house in passing this bill 
would be saying in effect to the inventor: ''We are giving you pro- 
tection and we expect the country to obtain some advantage thereby." 
He quite agreed with the honorable member, and he only hoped that 
at some future date the house in passing a fuller measure of protection 
would say the same thing to the manufacturers of this country. He 
thought the honorable gentleman, if it was not impertinent to say 
so, had spoilt an otherwise excellent speech by the remarks he had 
made use of at the end in which he said this bill had nothing what- 
ever to do with fiscal reform, and he could not help thinking of the 
words used by the present secretary of state for India in 1900 when 
he said — 

In this era of militarism which they promise us, domestic reform, constitutional, 
fiscal, or any other reform will be very slow in coming, but real and deep danger is 
the loss of our industrial supremacy. Great rivals are springing up against us in all 
the markets of the world. 

He did not treat any kind of fiscal reform as one would treat the 
plague, as the honorable member who opened this discussion appeared 
to treat it. Then he thought they on that side of the House had 
listened with great interest to the remarks which had fallen from the 
honorable member for Northamptonshire, and, although he did not 



PATENTS AND DESIGNS BILL. 15 

intend to follow him into all his arguments about the state of the boot 
trade in Northam])tonshire, he could not help thinking that that was 
rather a doleful afternoon for the free importers, because first they 
had the member for Prestwich telling them that goods were sold 
more cheaply in Germany than in this country and then they had the 
honorable member for East Northants giving a (k)leful picture of the 
state of the boot trade in Northamptonshire and the way in which 
our American rivals had got the better of us. lie did not wish to 
turn the debate into a free-trade and ))rotectionist discussion; he 
only desired to make a suggestion with regard to clause 2 to the right 
honorable gentleman in charge of the bill. His honorable friend the 
member for the Kingston Division of Surrey objected to clause 2 on 
the ground that it might inflict hardshi}) on the poor inventor. He 
was not sure that he agreed with his honorable friend. It appeared 
to him that there could be no objection to clause 2 if the right hon- 
orable gentleman gave to the comptroller full discretion in the matter. 

Mr. Lloyd-George. He has got it already. 

Viscount Turnour said he had not seen it. If the comptroller had 
discretion, it was discretion of a very limited character. His sugges- 
tion was that the comptroller should be given an unfettered discretion 
in these matters, because he thought that would get over the difficulty 
which honorable members on both sides of the house felt. The onl}" 
other point he wished to refer to was on clause 10. It was with diffi- 
dence that he made the remark, but it seemed ta him that the effect of 
the clause would be to throw on the comptroller the onus of defining the 
meaning of a treaty with, of course, an appeal to the judge. He believed 
that in previous bills introduced into the House to amend the patent 
laws the promoters had been very careful to avoid putting that onus 
upon either the comptroller or the judge. In his opinion it made it 
rather dangerous if it was intended to give this power to the comptroller 
or the judge, but no doubt the right honorable member had good reason 
for putting what he had into the bill. He hoped the bill would pass 
through all its stages very quickly and become law, and that it would 
remove one of the many unfair restrictions from which inventors and 
manufacturers in this country suffered at the present moment. If 
it was not impertinent to do so he would like to congratulate the 
right honorable gentleman on, he would not say the fu-st, but one of 
the first steps w^hich he had taken in the direction of protection. 

^fr. Mond (Chester) said the bill made inroads on the rights of 
patentees in a manner which he thought was scarcely realized. He 
did not think there was any necessity to reply to the noble lord 
opposite. The fact that certain goods might be produced more 
cheaply in a protectionist country, the general fiscal system of the 
country not being the only consideration in the case, was too ele- 
mentary to be discussed. To his mind the bill was in no way a step 
in the direction of protection. He washed to draw attention to 
clause 9, which, as at present drafted, would lead to the curious 
result that part of the procedure under it would have to take place 
before the comptroller and part before a judge; that was to say, if it 
was desired to revoke a patent on some grounds, application would 
have to be made to the high court, Avhile, if certain other grounds 
were taken, the application would have to be made to the comptroller, 
so that there would have to be two petitions floating at the same time. 
It was admitted that inventors were the most poorly paid people in 



16 PATENTS AND DESIGNS BILL. 

the country. What was really the grievance of members of the boot 
trade ? They seemed to have entered into some imprudent arrange- 
ment and now came and asked the house for a bill to cancel that 
arrangement and to alter the law in a very important particular in 
order that they might get out of an unprofitable contract. Clause 16 
referred to the avoidance of certain conditions attached to the sale 
of patented articles. A patented article in this bill was defined as an 
article made by a patent process. A man made a bleaching powder 
with a patent and another made it without a patent. Supposing the 
latter made a contract with a customer to sell to him for 10 years, 
that contract was not included in the provision. But supposing the 
man who manufactured by a patented process made a similar con- 
tract, it could at any moment be canceled as being void in law. He 
submitted with very great diffidence whether that was not the right 
interpretation of the very complicated language of clause 16. It was 
a point to which he seriously drew the attention of his right honorable 
friend. Under the clause an article made under a process which 
happened to be patented thereby became a patented article. That 
might not be the intention of clause 16, but the clause as it now stood 
was very dangerous indeed. An industry should not have more 
hardships placed upon it without very serious deliberation, and they 
ought not to interfere with the right of contract between business 
people exercised in a business way. Another important point was 
as to the compulsory working clauses. A great many people were 
very enthusiastic about the compulsory working clauses. He had 
some experience of similar clauses abroad, and he did not flatter 
himself that they would be any more efi^ective here than they had 
been elsewhere. Their efl^ect abroad had been absolutely nil. He 
had taken the trouble to look up both the French and the German 
compulsory working clauses, which provided that where the inventor 
did not make efforts for the working of his invention in two years, or 
did not work it for two consecutive years, he lost the right to his patent. 
Surely it ought to be that somebody should be allowed to continue 
the monopoly and right to the patent if the patentee did not exercise 
it in his country or refused to grant reasonable licenses to somebody 
else. If he exercised the right in some other country, that seemed to 
him to be a point quite apart and one which seriously conflicted with 
section 5 of the convention of 1883. As far as he could see, the clause 
as now drafted seriously contravened that convention, and it appeared 
to him that the patent office, already overworked, in making an order ,< 
would have to study every convention to find out whether the order f 
affected any one of the conventions. He was an English patentee, 
and he carried on his manufacture in Sweden because of the water 
power obtained there. Consequently, he would be robbed of the 
benefit of his invention as far as England was concerned. The bill 
took away the right of the patentee to go to the House of Lords on 
a question of the revocation of a patent. After all, patents were 
very valuable property, and why should the patentee, less than any 
other subject in England who had the right to go to the highest court 
of appeal, be under the control of one judge and debarred from taking 
his appeal to the House of Lords in order to get a decision on a point 
which might involve millions of money ? He could understand its 
being done with the idea of saving expense, but patents which were 
worth anything were, as a rule, worth spending money upon. He 



PATENTS AND DESIGNS BILL. 17 

thought that tlie powers of tho com])t roller would really have to be 
altered, and if his right honorable friend the })resident of the board of 
trade could see his way to constitute, once and for all, a coin{)etent 
court to deal with patent cases, he would confer one of the greatest 
boons on inventors, patentees, and commercial men, and he was sure 
it would save an enormous amount of money. At that stage of the 
bill he would not <^o into further technical points. He thought the 
bill could very well be referred to a committee, but he hoi)ed that 
the points he had raised would be very carefully considered, and that 
they would have when the bill was i)asse(l something which would 
approach finality. The}" all knew that people connected with patents 
found it very dillicult to understand the patent laws of the country, 
which were very expensive and discouraging. He hoped that some 
of the suggestions thrown out by the honorable and learned member 
opposite would be carried out and that on the committee stage of the 
bill the Government would carefully consider, as he had no doubt 
they would, the amendments which would be placed before them by 
ex})erts who had devoted the best part of their lives to the subject. 

Mr. J. D. White (Dumbartonshire) said that anyone familiar with 
the working of the j^atent system had recognized the necessity of 
legislation along the lines of this bill. In any legislation dealing with 
the relation of home and foreign patents it was necessary to bear in 
mind that we could not differentiate as against foreigners, because, 
by the international convention of 1883, the subjects of States which 
w^ere parties to that convention were to be treated on the same basis 
as our own people. With reference to the actual })roposals of the 
bill, he thought that a great deal was to be said in favor of the require- 
ment, as regards certain chemical patents, that the board of trade 
should have power to require samples to be deposited. This would 
do a very considerable amount toward lessening the evils which arose 
from what were commonly called ''paper anticipations." There 
was a difficulty which he was bound to point out, and it was that the 
bill proposed that samples might be required to be deposited not 
merely with a complete specification, but also with a provisional 
specification. The object of the provisional specification system 
was to enable the inventor to obtain priority of time and to develop 
his invention, which he described subsequently at length in his com- 
plete specification, and until he had developed his invention he might 
be seriously hampered if he had to deposit a sample with his pro- 
visir lal specification. The clause relating to restrictive conditions 
in ' ae use of patented articles was of great importance. It had been 
all along the case that the patentee had been regarded as ha^dng the 
field entirely to himself, and that if people used his patent he could 
impose upon them any conditions he liked. The hardship of that 
was that where restrictive conditions were imposed and there was a 
])reach of those conditions, it was treated by the court not as a breach 
of contract, but as an infringenaent of the patent, and the whole 
system of injunction was brought to bear to strengthen the patentee 
in his position, which was a far stronger and more exclusive one than 
it was intended by the law to give him. He was glad that this clause 
IG, which had been so much discussed, had been put into the bill. 
He would suggest one amendment for the consideration of the right 
honorable gentleman. The clause dealt only with the restrictions as 
regarded the use of an article by persons engaged in a trade or indus- 
40296—12 2 



18 PATENTS AND DESIGNS BILL. 

try. It seemed to him that this was a highly undesirable limitation, 
and that there should be an end, once and for all, of these restrictive 
conditions as regards the use of patented articles, whether they were 
used in the case of a trade or industry or in the ordinary course of 
daily life. He suggested that these words of limitation which limited 
the effect of the clause to articles used in trade or industry should be 
struck out. Clause 10 seemed to be one of the most important in 
the bill, but he doubted whether he could support it as it stood. It re- 
ferred to the revocation of patents worked outside the United Kingdom. 
He did not put his objection to the clause on the ground of free trade 
or protection, because that question did not really come in, as patents 
were certainly not questions of free trade or protection, but monopo- 
lies which were necessary to protect inventors and experimenters in 
the result of their labors. Therefore, as it was not a matter of free 
trade or protection, he proposed to discuss it on other lines. In the 
first place, he would like to consider what would be the effect in this 
country. A large number of foreign inventions w^ere brought over 
to this country. He instanced the case of typewriting machines from 
the United States. Those machines were sold here at about the 
same prices as in the United States. Had they any quarrel with that ? 
If this clause were put into operation it might lead to certain parts of 
these American typewriting machines being made in this country, 
but it would increase the cost of production and the price of these 
articles to the general public. He ventured to think that very grave 
difficulties would arise under this clause in regard to articles manu- 
factured exclusively or mainly outside the United Kingdom. He 
did not know what ''mainly outside" meant, and probably they 
would require a long series of legal decisions to find out. The great 
difficulty which the inventor had to face was obtaining capital to 
work his invention. He was very much afraid that if this clause 
became law they would find powerful syndicates attempting to freeze 
out poor inventors by threatening that unless they sold their patents 
at breaking-up prices they would take steps for an action for revoca- 
tion. Those considerations weakened the argument in favor of 
clause 10. He thought the object of that clause could be met suffi- 
ciently by a satisfactory system of compulsory licenses. He wished 
to congratulate the president of the board of trade on the changes 
he proposed to introduce in regard to compulsory licenses in giving 
those who sought them an easier, cheaper, and more rapid tribunal 
than the privy council. That would in itself almost be enough. 
There was another thing which would do a great deal in the same 
direction, and he would commend it to his right honorable friend. 
As all those familiar with patent-law actions knew, anyone bringing 
an action for infringement generally went lor an injunction, and if an 
infringement was established an injunction was granted as a matter 
of course. In almost all other patent cases an injunction was looked 
upon as an exceptional remedy, and it was never granted unless the 
ordinary remedies would be inadequate. The judges several cen- 
turies ago, in the reign of James I, treated the infringement of a 
patent as a contempt of the royal prerogative upon which the patent 
was founded, and it was dealt with by the star chamber. The star 
chamber had long disappeared, but the injunction was still wielded by 
the courts in the same wholesale fashion. He suggested to the right 
honorable gentleman that the law should be altered in such a manner 



PATENTS AND DESIGNS BILL. 19 

that an injunction should not be granted unless, for one thing, it 
could be shown that ordinary remedies would not meet the case. If 
this question of injunction were dealt with it would be an important 
contribution toward what they all desired. Supplemented by that 
he thought the system of compulsory licenses which was now pro- 
posed would effect the desired end. He was glad to see that the 
Government were dealing with several matters with reference to 
designs and were laying it down that no designs were to be marked 
as registered except where there was a subsisting copyright. He 
would like to go a step further. At present an article might be marked 
as registered just before the copyright expired. It seemed to him 
highly desirable that when any person marked a design as registered 
he should in addition give the year and the number of the registration. 
That would enable the public to verify the claim and to find out in 
a simple manner how long a design had still to run. The same argu- 
ments applied to the case of patents. He thought it was a rather 
serious oversight in the Government bill that the provision which 
applied to designs did not apply to patents. Section 105 of the act 
of 1883 applied to both patents and designs. As the law stood, 
people could not mark an article as patented unless the patent had 
been granted, but once granted they could go on marking it patented 
after the patent had expired. It would be a very good thing if this 
were so amended as to restrict the marking of any articles as patented 
to an article which was covered by a subsisting patent, and when 
the patent expired the right to mark an article as patented ought to 
cease. In all patents the date and number ought to be given as part 
of the marking, because without that information it was often impos- 
sible to find what particular patent was referred to. A typewriting 
machine might be marked as patented, although the only thing i 
covered by the patent might be some simple adjustment for the rib- | 
bon. There was a patent case in the House of Lords not long ago 
concerning a bottle containing mineral water, ginger ale, which had 
been marked as patented. The patent did not refer to the bottle, 
which was of a common type, or to the liquid, which, he might add, 
was well known to a large number of members of the house. What 
was referred to was a part of the machinery used in aerating the 
liquid. How was it possible to find out under the present system 
what the patent really was ? Therefore he thought anyone who 
marked an article as patented should be required to give the date 
and number in order that the public might be able without much 
trouble to ascertain its duration and scope. For many years we 
had treated the term '^true and first inventor'' as covering a person 
who imported an invention from a foreign country. The importation 
of inventions which the importer had come across abroad was a thing 
of the past, and the effect of that arrangement now was that a person 
abroad, instead of acting as a British applicant and making the 
required declaration as to his being the true and first inventor, had 
the alternative of communicating it to an agent in this country, who 
could then obtain a patent in his own name for the invention as a 
'^communicated" one, and it had been held repeatedly that in the 
case of a '^communicated" invention no inquiry could be made as to 
the circumstances under which the communicated invention had been 
obtained. In the result, if anyone stole an invention and tried to 
patent it in the ordinary way, he would very rightly be defeated, but 



20 PATENTS AND DESIGNS BILL. 

if he crossed the channel and posted it to an agent, the agent could 
obtain in his own name a patent for it which could not be challenged 
on the ground of theft. He hoped that his honorable friends would 
not think that he was showing people how to steal patents. What 
was contrary to public morals was not calling the attention of the 
house to the evil, but the fact that the evil existed. He hoped that 
when the bill went into committee that evil might be removed, and 
that they might put applications from abroad on precisely the same 
level in respect of the requirements as to good faith and originality 
as applications from people in this country. He considered that a 
patent should not be granted unless the applicant, or one of the appli- 
cants, made the ordinary declaration that he believed himself to be 
the true and first inventor, and that the patent should be upset if 
a false declaration had been made. He had risen to commend the 
bill, and hoped that his right honorable friend would not look upon 
him as a sort of inverted Balaam because he had tried to temper his 
commendation with suggestions for improvement. He congratu- 
lated his right honorable friend on the way in which he had under- 
taken the important and difiicult task of reforming the patent laws 
and hoped that the measure would have the happy result of pro- 
moting the industrial development of the country. 

Mr. Jesse Collings (Birmingham, Bordesley) said that as this ques- 
tion was regarded as one of the greatest importance in the large 
manufacturing city which he represented, he would like to say a few 
words upon it. He congratulated the president of the board of trade 
upon dealing by an amending bill with the present unsatisfactory 
state of the patent laws. He rejoiced that the right honorable gen- 
tleman had not been frightened by the absurd cry of protection . 
The debate upon this and other bills would be simplified if Liberal 
members would cease to describe themselves as free traders. They 
were nothing of the kind. They were simply free importers. He 
had always been for free trade, but we had not got it. It mystified 
the question when undue and misleading terms were used. The bill 
was designed to secure not protection but fair play for British traders 
against the unfair competition of foreigners. The honorable member 
for East Northamptonshire seemed to have protection on the brain. 
The honorable gentleman's speech satisfied the opposition completely 
in the direction of protection as they understood it. Nothing could 
be more satisfactory to them than the principles the honorable 
member had laid down. The honorable member for Kingston had 
made an important speech, and he hoped the president of the board 
of trade would give careful attention to the suggestions which he 
had made. He was sure the right honorable gentleman was alive to 
the importance of sparing the inventor, and especially the poor 
inventor, unnecessary expense in connection with legal proceedings. 
The poor inventor when opposed by a rich rival or by a syndicate 
often had not only his purse but his heart broken. He hoped the 
Government would adhere to clause 10 of the bill, which required 
that articles patented should be manufactured largely, if not exclu- 
sively, in this country. If the British Government gave a man a 
monopoly to supply 42,000,000 of people in this country with a par- 
ticular article that man should be compelled to manufacture a large 
proportion, if not all of them here, so as to employ British labor in 
their production. That was absolutely fair. If that was protection. 



PATENTS AND DESIGNS BILL. 21 

all who supported the bill were protectionists. It would be advan- 
tageous if the Government would define more clearly tlian was done 
in the bill what proportion of patented i^oods should be made in this 
country, so as to insure that tJie proportion was substantial. From 
the point of view of the British inventor and the British workman 
the arguments of the honorable member for Chester were unsound, 
and he hoped the president of the board of trade would resist any 
blandisliments as to alleged protection or anything else and keep in 
view what would be fair to British inventors, traders, and workmen. 
He congratulated the right honorable gentleman upon taking this 
long-delayed amendment of the law in hand, and was confident that 
the ramifications of its benefits would extend to inventors, commercial 
men, and workmen. The inventor too often had the advantages 
whicli would reward his genius and inventive capacity filched from 
him by the power of gold. He hoped Parliament would protect the 
individual against that power. 

^Ir. Astbury (Lancashire, Southport) said that the honorable 
member for the Kingston division had raised a number of points 
which were deserving of consideration. The main object of the bill 
so far as policy was concerned was contained substantially in the two 
clauses wliich provided for compulsory working and compulsory 
licenses, and so far as those two clauses were concerned, with the ex- 
ception of some possible criticism as to the court before which these 
matters were to come, he was of opinion that they supplied a long- 
needed want in connection with the great industries of the country. 
It was an extraordinary thing that from a land where Perkins's 
mauve was invented, the color industry should have passed to a for- 
eign country and that the country which produced the electro magnet 
and the induction coil should have been passed by other countries 
in the race for the discovery, application, and completion of electrical 
inventions. He believed that very largely the reason for this was 
to be found in our patent system and its administration. Surely the 
object of our patent laws ought to be in the first place to encourage 
invention as far as possible in order that scientific research and people ^ 
who were acquainted with science should be more encouraged in the 
country and be induced to take more part in developing our indus- 
tries. The next object, however, was that the monopoly given by a 
patent should be a monopoly which should be confined to carrying 
out the intention of the original framers of the statute of monopolies, 
that it should be subservient to the purpose of introducing and work- 
ing these patented inventions in this country. iVt present the 
industries of this countr}^ were largely handicapped by the fact that 
patents could be obtained with great facility by foreign firms and rich 
corporations, and manj^ minor patents could be taken out subsequent 
to the main invention, with the result that, having regard to the 
great expense of patent litigation, be the patents good or bad, 99 
out of 100 of the small traders of the country could not suffer the 
expense of fighting these great foreign corporations and the inven- 
tions remained for years unworked here. He wished to add his testi- 
mony to the courage and ability of the right honorable gentleman in 
charge of the bill in taking up a subject which not only bristled 
with difficulty but on which there was an enormous difference of 
opinion. The question of compulsory working had two sides, and 
there were a large number of people in the country, many of them 



22 PATENTS AND DESIGNS BILL. 

well qualified to speak, who were bitterly opposed to the notion that 
we should improve our position by putting the compulsory clause 
into operation. He was not one of those. He believed that the 
monopoly which the Crown granted to an inventor ought prima facie 
to be a monopoly which should be given to and utilized for the benefit 
of our own industries and our own land. It was said that if that 
were done it would be a hardship upon the English patentee. He 
had heard from the honorable member for Chester and others outside 
the house that if patents could be revoked because they were only 
worked outside the country many English inventors who had facilities 
for working abroad and not at home would be deprived of their 
patents. The first answer to that was that they were absolutely 
negligible in number, and, secondly, that if that was the case they 
ought to be deprived of their grants on the same grounds as a for- 
eigner, if the main object was that the industries of this country 
should benefit from the monopoly granted. He was far from saying 
that the bill entirely carried out the object which the right honorable 
gentleman had, but he knew from the way in which the right hon- 
orable gentleman had met the views of many who had seen him that 
he was only too anxious in committee that any further improvements 
that could be suggested in this respect should be adopted. With 
regard to compulsory licenses, there was a class of people who believed 
that the right way to effect what they desired was by way of compul- 
sory licenses rather than by way of compulsory working. His own 
view was that that was wrong. The right view, as it seemed to him, 
was that the best results would be obtained by a combination of the 
two remedies, because there was a vast difference between enforcing 
compulsory licenses — after litagation and after difficulties which must 
arise in the case of a complicated invention — and the simple expedient 
which said that if the monopoly was granted and it turned out that 
at the end of three years this country had not benefited from it as 
it should that monopoly should cease. With regard to compulsory 
licenses, a question had been raised with regard to the so-called unrea- 
sonable contracts which were said to have become a practice chiefi}^ 
in the boot trade. He did not think the house ought to be asked to 
say that clause 16 should be made retrospective. It was hardly in 
accordance with sound administration that the house should lay down 
that a large number of existing contracts should be made void. But 
so far as he could judge from the provisions of clause 11, any person 
who was unable to obtain a license except on terms which were unrea- 
sonable or injurious to trade could apply for and obtain a compulsory 
license, and if the terms suggested in the contracts mentioned were 
of the character described the remedy for those who were bound by 
such existing contracts was to be found under clause 11. With 
regard to the machinery of the bill, under the designs part of it there 
was a matter he desired to refer to which was of very great moment 
to Lancashire, and in which he believed most Lancashire members 
took a great interest. More than 50 per cent of the total designs 
registered in this country every year were textile designs under the 
last two classes in the designs act. In 1905 the house, in the trade- 
marks amendment act, established a separate system of cotton marks 
with a keeper or registrar of those marks in Lancashire who was 
conversant with the requirements of the firms interested in these mat- 
ters. The proportion that cotton marks bore to the total trade- 



PATENTS AND DESIGNS BILL. 23 

marks of the country was nothing hke so large as the proportion 
which textile designs bore to designs as a whole. Textile designs 
were of two classes, either printed or woven, and every year there 
were registered 10,000 textile designs, of which 7,000 were printed 
designs. Of these 7,000, more than 6,000 were registered from Man- 
chester, and more than half of the woven designs were from that 
center. The universal desire in the textile industries was that there 
should be a branch registry for textile designs established in Man- 
chester on the same lines as was done in the case of cotton marks. 
He trusted that the right honorable gentleman in charge of the bill 
in committee would allow a clause to be added to the bill with that 
object. There was also another matter which he regarded as very 
important in the administration of the law and the clauses of this bill 
in relation to patents. The honorable member for Kingston had sug- 
gested with great force that this very difficult and constantly increas- 
ing matter of scientific litigation should now be placed in the hands 
of a tribunal which was especially conversant with the matters it 
would have to deal with and designed for that purpose. The bill as 
drawn provided that certain matters on appeal from the comptroller 
of patents should be taken to a judge nominated by the lord chancellor 
rather than to the law officers of the Crown. Their duties with regard 
to patents were really almost intolerable at the present time, and if 
the bill passed in its present form the number of appeals would be 
quadrupled or more, making it quite impossible for the law officers 
to attempt to deal with them. He suggested that there should be 
established a scientific or patent and trade-marks division of the 
high court in the same way as there was established an admiralty 
division. Cases in the admiralty division were tried with great 
facility and dispatch, because of the constant practice there and the 
continuity in the administration of the law and in its interpretation. 
Some similar court for scientific industrial matters would be a great 
step forward and a necessary step if full advantage was to be obtained 
from the objects and provisions of this bill. But he did not think 
that it would be desirable that one permanent judge should be ap- 
pointed to that court. He agreed entirely with the honorable and 
learned member for Kingston, and for this reason: That it was 
undesirable in these scientific matters that the law and its adminis- 
stration should get stereotyped and cramped. They wanted the 
elasticity of different minds coming to these matters from time to 
time, and if a division could be established and a judge nominated to 
sit in it annually by the lord chancellor, it would mark a very great 
step forward in the administration of our patent laws. If that were 
done, that judge, sitting in chambers, could take all the matters that 
the law officers at present took, and the same people would have 
the same right of audience before him when exercising this jurisdic- 
tion. It was considered very undesirable by many who were 
acquainted with the administration of the patent law that the comp- 
troller should have extended powers, such as were suggested in clause 
6, of refusing the original grant of a patent. He suggested that there 
the law should remain as it was, and that under clause 9 the comp- 
troller should not have power to revoke any patent except on the 
grounds on which at the present time he could refuse the original 
grant. He would suggest further that the questions under clause 10 
should go before a judge of the high court and not before the comp- 



24 PATENTS AND DESIGNS BILL. 

troller. It would be a most delicate and difficult jurisdiction to 
administer, and he believed it would be cheaper and much more effi- 
cient in the long run that these matters should go, in the first instance, 
before a judge of the high court instead of before the comptroller. 

Mr. Meysey-Thompson (Staffordshire, Handsw^orth) said he rose in 
no spirit of opposition to the bill. There was so much that he thought 
good in it that he desired not to obstruct it, but to help it forward and 
make it as effective as possible. He saw, in looking through the bill, 
that there was no provision for extending the period of protection to 
the patentee, and he urged that something should be done in that 
direction. He was quite aware that a patentee -could apply to the' 
court for such an extension, but he had no guaranty that he would 
get it. That bore very hardly, especially on the poor patentee with 
no great weight of capital with which to bring his invention forward. 
It took some time to perfect his invention, and a considerable time 
to bring it before the public, and just about the time when it began 
to pay his patent lapsed and somebody else got the benefit of his 
brains, energy, and enterprise. The benefits accruing from the 
inventor's brains, energy, and enterprise should, however, be secured 
to him, and he asked the president of the board of trade to consider 
whether it would be possible to introduce a clause increasing the 
facilities for and reducing the cost of obtaining an extended period 
of protection. 

The president of the board of trade (Mr. Lloyd-George, Carnarvon 
Boroughs) thought the Government had every reason to be satisfied 
with the reception accorded to the bill in the course of the discussion. 
There had been substantialh^ no criticism of any leading principle of 
the bill. The criticism had been directed against points of detail, 
very important points, no doubt, but all points which, he thought, 
could be successfully attended to without in any way destroying the 
general structure of the measure. He might say, for his part, that 
he would welcome any suggestions in committee, and no pride of 
paternity would prevent him from giving them favorable consideration 
so long as the leading principle of the bill was not altogether extermi- 
nated. He would refer to only two or three leading points that had 
been raised in the course of the debate. As to the suggestion of the 
honorable and learned member for Handsworth, it seemed to be 
fair, under the circumstances he had mentioned that they should have, 
at any rate, the power to apply to some tribunal to grant an extension 
of the patentee's monopoly and privilege. The patentee could now, 
under section 25 of the consolidating act, apply to the pri^^ council. 
The only criticism that might be passed on that process was that it 
was a very expensive tribunal, and he was prepared to consider 
whether it was possible to simplify and cheapen the method of apply- 
ing for an extension under these circumstances. They wanted, if 
it were possible, to cheapen the whole process. At the present 
moment it was almost prohibitive, and it was certainly prohibitive 
for the poor inventor, who was either denied justice altogether or 
compelled to part with his patent to the first capitalist that came 
along. That was a very unfortunate state of things. He was glad 
to observe that legal gentlemen inside and outside the house showed 
for the poor inventor a keen anxiety which was very creditable, and 
he was very glad to see that the honorable member for Chester had 
also joined them. He desired to say, before he proceeded to any of 



PATENTS AND DESIGNS BILL. 25 

the other ciiticisms, how much lie tlianked his lionorable and kuuiied 
friend, the member for Southport, than whom there was no hi«^her 
authority, either inside the house or out of it, on these mattei's, not 
only for the suggestions he had mack^ that afternoon, but also for tlie 
very great assistance lie rendered to him before he introduced the 
bill. The noble lord the member for Horsham had suggested that 
they should not make the deposit of samples under clause 2 compul- 
sory in all cases. As a matter of fact, that was provided for already. 
It was never intended that every patentee of a chemical invention 
should be compelled to deposit samples. It was left entirely in the 
discretion of the registrar, and the provision w^as much more elastic 
than the German regulations in that respect. Clause 6, which had been 
criticised, was entirely in the interests of the inventor. It was in- 
tended to cover a case of this kind: They might have an application 
for a patent which had not been covered by any previous grant. It 
was, how^ever, thoroughly well known that it was a process in respect 
of which a patent had been issued in another country and full par- 
ticulars of which had been published in this country. But, although 
that was known to all the parties, it could not be referred to in the 
hearing before the comptroller, and the result was that the comp- 
troller was obliged to grant a patent which was in itself an invalid 
patent, and when they came to the subsequent hearing before the 
court, the whole grant had to be revoked. It would be better if, in 
the first instance, a patent of that kind could be alluded to, and that 
the comptroller should have discretion, in a clear case of that sort, 
to refuse a patent. The present system was simply a premium on 
litigation. 

Sir E. Carson (Dublin University) asked whether the appeal in that 
case w^ould go to the law officers or to the judge. 

Mr. Lloyd-George said his own Interpretation was that it would go 
before the law officers, but he was prepared favorably to consider the 
suggestion which had been thrown out that it would be far better if 
the whole of the appeals were taken before the special judge who was 
to be allocated to this purpose. He might sa}" that it was rather his 
intention, even before the debate of that afternoon, to introduce an 
amendment to that effect in the bill. He thought it would be an 
improvement. With regard to clause 10, there again the criticism 
had not been directed against the principle. The honorable member 
for Merthyr had put down an amendment, and then, very character- 
istically, if he might say so, having seen it well advertised in the press, 
ran away from it. He was not at all surprised, because he knew his 
honorable friend pretty well. But apart from this firing at a long 
distance there had been no hostile criticism. The honorable member 
for Chester brushed aside at once very effectively the suggestion that 
this had anything whatever to do with the merits of the great fiscal 
controversy. Therefore he would not go into that, as he had not been 
challenged. All the criticisms against section 10 had been criticisms 
upon points of detail. Those would be thrashed out in committee, 
and he did not think it would serve any useful purpose for him now 
to give a final answer to suggestions which had been thrown out, and 
which he had to consider very carefully, because he agreed with the 
honorable member for Southport that this w^as a very difficult problem 
altogether. Then he came to the point with regard to the allocation 
of a special judge. He was not at all surprised that the honorable 



26 PATENTS AND DESIGNS BILL. 

member for Richmond did not agree altogether upon that, because 
it would be a very serious thing if they had a judge who was not 
quite adapted to the work — and accidents of that kind had hap- 
pened — a judge who w^ould be set up in a kind of special statutory 
court, and who could not well be moved. The point would be con- 
sidered very carefully; but they had felt that on the whole the best 
plan was to proceed experimentally, and to get a special judge assigned 
for the purpose. Of course he could see the advantage of it. If 
they went to different judges to try patent cases, they had to waste 
an enormous amount of time in explaining to them the very elements 
which a judge trying these things constantly would take for granted. 
Having a special judge they would save time, and that meant saving 
expense. He was sure they would save at least two-thirds of the 
time spent on these cases if they had a judge specially versed in them. 
They proposed, therefore, to start by allocating a judge especially for 
the purpose, and he was not sure that something might not be done 
during the committee stage in the way of altering the rules and things 
of that kind, which would in effect set up a special court, without doing 
it in so many words. Now he came to the important question which 
had been raised with regard to clause 16 — the avoidance of certain 
conditions attached to the sale, etc., of patented articles. It was no 
secret that that was put in very largely owing to the remarkable 
character of the contract which was forced upon the boot and shoe 
industry by an American firm. Nine-tenths of the boot and shoe 
manufacturers of this country were practically bound hand and foot 
by that contract. It would be a very serious matter if another 
invention was to come in, effecting a great saving of time and expense, 
and they could not take advantage of it, for they might be beaten out 
of the market altogether. That was a state of things which they could 
not possibly contemplate, and it made no difference at all whether the 
firm was British or American. After all, a patent was a privilege 
granted by the Crown, and Parliament had a right to declare the con- 
ditions under which the monopoly should be granted. He had been 
pressed to make the clause retrospective, but it was a very serious 
thing to introduce into an act of Parliament a provision which would 
invalidate contracts, and nothing but a great public necessity would 
justify it. In this case he did not think it ought to be done, except 
under conditions which would protect the inventor as well. The 
possessor of these patents had entered into a large number of contracts 
with manufacturers, and no doubt when he came to settle the terms 
upon which he let his machines be made he would take into account the 
security which that contract gave him for a good many years to come. 
It was an asset. He might have raised a considerable amount of 
capital, and if he knew that the contract he was entering into was 
void, he probably would have asked for a bigger royalty, and at any 
rate he was entitled to reconsider his position with those who entered 
into the contract with him. After all, they must be fair to all parties. 
He was not sure that, if they said that certain clauses in a contract 
should be void, it would be quite fair to future purchasers of that 
machine. When the syndicate owning the patent knew that they 
could not enter into a similar contract they might say that in future 
they would demand a higher royalty. It would be unfair to those who 
entered into contracts in future if they had to pay more for the 
machine than those who had entered into the contract already and 



PATENTS AND DESIGNS BILL. 27 

had been liberated by act of Parliament, lie agreed that something 
ought to be done. His honorable and learned friend thought that 
clause 1 1 met the case, but he was not sure that it met the whole case, 
and he was prepared to consider any amendments that might be 
moved to meet it so long as those contracts were invalidated under 
conditions which would be perfectly fair to both parties. In regard 
to a special office in Manchester, though he could not at present give 
a pledge, he rather thought they would be able to meet the case. 
It would be a great convenience to the Manchester manufacturers to 
be able on the spot to examine the designs instead of coming up to 
London. He would consider it very fully, and he thought it could be 
accomplished. He had now dealt with nearly all the criticisms passed 
on the bill, including those of the honorable member for Bordesley. 
He agreed with the right honorable member that what they wanted 
was fair play and justice to British industries. [Sir Howard Vincent: 
Hear, hear.] He thought that would appeal to the honorable and 
gallant gentleman. At present some of the powerful foreign trusts 
were able to bring pressure to bear, by their great financial resources, 
to prevent bona fide inventions taking root in this country to begin 
with. They crushed them in their infancy by legal action. It was 
a case where they practically drove some branches of British industry 
out of the field altogether, as it were, because they were never allowed 
to start at all. He trusted that when this bill was passed they would 
be able to put an end to that practice forever. 

Mr. Bonar Law (Camberwell, Dulwich) said that, as the only mem- 
ber on the opposition side of the house who had been connected with 
the board of trade, he naturally followed closely measures which came 
from that department. On personal grounds he had legitimate cause 
of grievance against the president of the board of trade. It was the 
duty of the opposition to oppose, and his colleagues had no reason to 
complain that their activity in that respect had been interfered with 
by the members of the Government. His colleagues had opposed, 
and had enjoyed their opposition. He also would have enjoyed 
opposing, but he had not had the opportunity, for hitherto he had 
only been able to play the very uninteresting role of supporting the 
measures brought forward by the right honorable gentleman. That 
really pointed to what was a recognized fact, that trade questions 
were not in any sense party questions; and he was sure the right 
honorable gentleman would admit that from the opposition he had 
received not only no factious obstruction on trade questions, but a 
measure of support which was not usual. In regard to this bill, he 
entirely approved of the objects which the right honorable gentleman 
aimed at, and to a very large extent of the methods by which he 
intended to carry them out. In regard to the court before which these 
patent cases were to be tried there was a good deal to be said for the 
view of the honorable member for Chester. The issues involved in 
these cases were often enormously large, they could be taken from one 
court to another, and it seemed unfit that a question that involved 
millions should be finally settled by one judge. But in all these cases 
there was a balance of advantage and disadvantage, and personally 
he thought the balance of advantage on the whole distinctly was that 
the cost of securing patents should be made as low as possible. There- 
fore, it was at least worth while trying to have such cases tried before 
one judge, who, as the right honorable gentleman had promised, 



28 PATENTS AND DESIGNS BILL. 

would be specially devoted to the work and specially competent to 
develop it. The second point to which he wished to refer was that 
mentioned in clause 2 of the bill, which had relation to the conditions 
on which patents for chemicals were to be granted in future. He did- 
not think the right honorable gentleman was perfectly just to hia 
noble friend on this point. He did not think the bill, as it at present 
stood, gave the protection which the right honorable gentleman 
thought it gave. What ought to be done was to give the comptroller 
power, provisionally at least, to grant protection long enough to enable 
the inventor to secure sufficient financial support from capitalists. 
As the right honorable gentleman had pointed out in introducing the 
bill, Germany had practically a monopoly in many branches of the 
chemical industry. Where that monopoly was due to superior 
methods, there was no ground for complaint. It was the fair spoil 
of Germany's bow and spear. But, however obtained, that monopoly 
had been confirmed and strengthened by this country's patent laws. 
They had this effect — that a syndicate or large capitalist would take 
out a patent to cover much ground without working it at all. There- 
fore, inventors were prevented from going in that direction at all. In 
Germany the patentee was not allowed to cover the same amount of 
ground, and, therefore, the field was left much more open to com- 
petition. We should adopt the same system in this country. As to 
the clause preventing contracts similar to those which now prevailed 
in the boot trade in this country, he admitted that it was a strong 
measure to interfere with contracts deliberately entered into by busi- 
ness men who knew what they were doing. But these contracts were 
in a special position. The man who made these conditions was only 
able to make them by means of the special privilege given by our laws ; 
and, therefore, it was reasonable to take care that that especial privi- 
lege was not used detrimentally to the interests of this country. But 
he agreed that it would be unfair to make the clause retrospective 
and it seemed to go further than was necessary to meet such cases. 
If that were true, and if he was right in his view, the industries affected 
would certainly make representations to the board of trade, and he 
was sure that the department would give them every consideration. 
The only other point in the bill was as to compulsory working. The 
right honorable gentleman showed that he was disappointed that the 
honorable member for Merthyr had not brought forward his amend- 
ment, but if the president of the board of trade was disappointed, he 
himself was much more disappointed. If the president of the board 
of trade had not made an epoch-making invention, he had certainly 
become the apostle of a new faith on the other side of the house. He 
had looked forward in this debate to something in the nature of a 
heresy hunt ; and it would have been very interesting if the honorable 
member for Merthyr had persisted, for a heresy, to be effective, must 
come from one's own household. With the best will in the world 
toward the right honorable gentleman, he was bound to say that he 
could not see his way to defend him against the honorable member for 
Merthyr, for in this matter the right honorable gentleman was 
undoubtedly a heretic. This was essentially a bill that sapped the 
whole theory on which our present fiscal system rested. A^hat was 
the root theory of our present fiscal system ? That it was our interest 
to get any products consumed in this country from any quarter of the 
world where they were produced to the best advantage, without 



PATENTS AND DESIGNS BILL. &9 

regard to wliotlier or not they were produced in this country. The 
right honorable gentk^man said that a ])atent was entirely different; 
that it was a monopoly, and that we had a right in granting the 
monopoly to see that it was used to the advantage of this country. 
That w^as true. But the question was not one of right. We had a 
right to put on an import duty if we thought it to our advantage. It 
was merely a (]uestion of interest. Apply that princij)le to a ])atented 
article. Leave it to the free j^lay of economic forces, and what hap- 
pened ? The foreign patentee ])r()duced in this country if it paid him, 
and he produced abroad if it paid liim. Let him j)roduce abroad, and 
let us pay for it by those goods which we could ])ro(luce with advantage 
here — since goods must always be paid for with goods. If that were 
sound theory, why com})el the foreign patentee to produce here? 
There could be only one answer — that, in the opinion of the right 
honorable gentleman, it w^as in the interest of this country that these 
things should be produced at home. If that were so as regarded the 
question of principle, there was no difference whatever whether the 
result were produced in one way or another. If it were right to pro- 
duce the result by patent laws, it was equally right to produce it by 
import duties. The right honorable gentleman had pointed out that 
America alone had not insisted upon patents being worked in America. 
He felt sure that everyone in the house knew the reason for that, 
because it was perfectly obvious. When he was at the board of trade 
he happened to see a document wdiich came from a member of the 
American Government dealing with the compulsory working of 
patents. This w^as the substance of what the writer said: ^'What is 
your object," asked the writer, ''in having things compulsorily 
made? It is to get them made in the United States. What is the 
most effective way of securing that end ? Why fool about with patent 
laws ? If you want them made in the L^nited States put on a duty, 
and the things w^ill be made in the United States." The right honor- 
able gentleman's system, then, was more protective than the system 
of the United States, for he made the production in this country 
universal. The right honorable gentleman really adopted the prin- 
ciple which insisted that the system should be applied not only to the 
articles which we were adapted to produce, but that the articles which 
we were not able to produce should be made in this country provided 
they were the objects of a patent. [''No."] For the views which he 
personally held on this question he had received the greatest possible 
encouragement from the present Government. That encouragement 
had come from tw^o quarters. First, from the secretary of state for war, 
who was supposed to represent high thinking in the cabinet, although 
he did not know whether his colleagues in the cabinet took that view. 
A few weeks ago the right honorable gentleman made the curious 
statement that the law of free trade depended on circumstances; it 
was not applied at all times; it was a question of the conditions of the 
country that imposed it and the conditions of the country which 
wished to trade. That was an important admission. Let honorable 
members cast their minds back to their election speeches at the general 
election. [Cries of ''Order."] Was that too great an effort? Then 
let them try to imagine what those speeches would be like if subject 
to the condition laid down by the secretary for war. They could not 
talk about the consumer paying the duty, nor about the universal 
advantages of free trade; and then he w^ould like to hear a speech from 



30 PATENTS AND DESIGNS BILL. 

the riglit honorable gentleman and to enjoy the privilege of answering 
him. Secondly, the opposition had received another encouragement 
from the president of the board of trade, who represented the prac- 
tical spirit in the Government. The right honorable gentleman had 
lived up to the precept of the secretary for war. He had treated 
every question in his department as being one of expediency; he had 
looked at every question and had dealt with it from its own point of 
view, and nothing else. What was the result ? Last session the right 
honorable gentleman passed a bill, a beautiful bill, which had the 
effect, and it was intended to have the efTect, of protecting the shipping 
industry, not against foreign competition, but against unfair foreign 
competition, which was the only kind of protection the opponents of 
the Government had any sympathy with. Now, in this bill which the 
right honorable gentleman was piloting through the house he had 
gone a long step further, for it undoubtedly, in principle, sapped the 
foundation on which the whole of our fiscal system was based. 
[Ministerial cries of ^^No, no."] 

The solicitor general (Sir W. Robson, South Shields) said that in 
this bill the Government were concerned about the general trade of the 
country, and they were dealing with the patent law, which was essen- 
tially a protectionist law, with sufficient and excellent excuse. It 
was necessary to give a particular kind of protection here in order to 
stimulate invention; and the fact was that the patent law was pro- 
tectionist in a more severe degree than any tariff could possibly be, 
because it was practically prohibitive against the manufacture of cer- 
tain things except under certain conditions. That being so, this bill 
proposed to restrict the rights of monopolists whom the patent law 
had created; yet because the Government proposed to restrict the 
rights of monopoly they were told that they were deserting the cause, 
of free trade. 

Sir Howard Vincent. Never mind that. 

Sir W. Robson said the honorable gentleman asked for an applica- 
tion of the free play of economic forces to patent articles; but patent 
articles were wholly withdrawn from the free play of such forces. 
That was one of the reasons why the Government had introduced 
these clauses. Under the existing law proprietors of foreign patents 
had attached as conditions in the exercise and use of inventions in this 
country certain very onerous terms, such as — 

If you use our machine you can use no other for creating this particular commodity. 

and— 

You shall not avail yourself of any other invention. 

There might be a new device invented which would revolutionize 
the trade of the country, but many manufacturers were incapacitated 
from availing themselves of that invention. There was not only this 
prohibition of the free play of economic forces, but there was also a 
serious impediment to trade and invention, by the use to which a par- 
ticular class of foreign monopolist had put his patent. It could not 
be said, therefore, that the Government were deserting the cause of 
free trade when they restricted the power of such a monopolist as 
that, and asked for a fairer latitude to be given to the trader who was 
obliged by law to go to that particular vendor for the machinery that 
he wanted. On one occasion he had seen an agreement which im- 
posed restrictions on the British users of a particular class of machine. 



PATENTS AND DESIGNS BILL. 31 

The contract was made for 20 years, though the period of the })ateiit 
was for 14 years only, so that the American inventor by that device 
had in effect secured a prolongation of his patent. It was clear, 
therefore, that this legislation of the Government made for more 
freedom and less protection. 

Sir Howard Vincent (Sheiiield, Central) said that he did not care 
what the party supporting the Government called themselves as long 
as they brought in bills like this, designed to assist the manufacturing 
industry of the country. He thought that the whole-hearted su])port 
of the opposition should go out to the Government in their present 
effort, and he thanked the president of the board of trade for the great 
pains he had taken to master a difficult subject and to protect our 
inventors. Nothing could be more unfortunate in our manufacturing 
industry than to see how impossible it was for our inventors to derive 
profit from their inventions, especially in the case of men with re- 
stricted means. Any measure which simplified the patent law and 
secured to a man the product of his own invention was one to be 
approved. He was quite sure that the great mass of the people of 
Sheffield would be grateful to the president of the board of trade for 
the pains he had taken in regard to this matter. 

Mr. Radford (Islington, E.) said that as nearly all the things he had 
intended to say had been already said, he had very little to trouble the 
house with. He did not propose to discuss whether clause 10 was 
free trade or protection, but he wished to point out one or two impor- 
tant results of it. For the first time in this country there was going 
to be introduced what was known as compulsory working. That 
system had been tried in many countries abroad, but it had been 
abandoned as a failure where tried. There was no compulsory work- 
ing in the United States nor in the Commonwealth of Australia. If 
manufacture or compulsory working of the patent was to be enforced 
in this country, he thought it would be a serious matter for the poor 
inventor. He would like to remind the house how far they had 
advanced since 1902. In that year a conservative government 
passed a patents act under which it was provided that if a manu- 
factured article was manufactured mainly or exclusively outside the 
United Kingdom the patent might be revoked, but only in cases 
where the reasonable requirements of the public had not been satisfied. 
It was left for a liberal government in 1907 to bring forward a pro- 
posal, with the support of the right honorable gentleman, the member 
for the Bordesley division, that a patent should be revoked, although 
the demands of the public were satisfied, simply because the patented 
article was manufactured abroad, and he thought that was an advance 
wdiich ought to be noted by the house. It was the habit of our 
colonies periodically to go through our statute book and adopt those 
measures which they thought advantageous to themselves, and it was 
extremely likely, if this bill became law, that in the course of a few 
years nearly all our colonies would adopt it. Then in our colonies 
a condition of the validity of a patent would be that the patented 
article should be manufactured in the colony where it was granted. 
He did not know whether manufacturers here were prepared to face 
that contingency. It appeared to him to be a heavy responsibihty 
to take. Further than that, foreign countries would retaliate by 
having an equivalent of clause 10 in their patent laws. The result 
would be that everv manufacturer who set out with the intention of 



32 PATENTS AND DESIGNS BILL. 

supplying the world would have to be prepared to establish a factory 
in every British colony and in every foreign country. That would 
involve a great addition to the cost of manufacture, and, of course, an 
enliancement of the price to the consumer. He doubted whether 
clause 10 was well advised, and he hoped that it would receive further 
consideration. Clauses 6 and 9 afforded grounds for litigation which 
made him shudder, and he appealed to the right honorable gentleman 
in the interest of the poor inventor to reconsider that matter. He had 
known poor inventors who had become rich as the result of their inge- 
nuity and prudence, but he was satisfied that if clauses 6 and 9 
remained in the bill in their present form, the fortunes which inventors 
had hitherto made would in future be transferred to rich corporations. 

Question put, and agreed to. 

Bill read a second time, and committed to a standing committee. 

Referring to the following instruction of which the honorable mem- 
ber for Kingston had given notice, ' 'That it be an instruction to the 
committee that they have power to insert in the bill provisions for 
establishing a special tribunal for the hearing of all actions and 
proceedings relating to patents" — 

Mr. Speaker. If by that the honorable member intends the allo- 
cation of all patent matters to one particular judge, that can be done 
under the bill as it stands now, but if he goes beyond that, and intends 
to constitute a special division of the high court of justice to deal 
with patent matters, that would be beyond the scope of the bill. 

In reference to the following notices — 

Mr. Watson Rutherford. After second reading of patents and designs bill, to 
move, That it be an instruction to the committee to insert provisions that the patent 
granted in the United Kingdom to or on trust for any foreigner as a communication 
from abroad shall be ipso facto determined on the determination of the patent in the 
foreigner's own country from any cause whatever. 

Lord Balcarres. After second reading of patents and designs bill, to move, That it 
be an instruction to the committee that they consider the desirability of hearing 
counsel and examining witnesses with regard to Part II of the bill — 

Mr. Speaker. These instructions being mandatory are both out of 
order. No mandatory instructions can be given to a committee of 
the whole house or to a standing committee. 

Mr. Rawlinson (Cambridge University) said he understood that the 
bill did not give power to relegate all patent matters to a judge. The 
present state of the law was that every application for a revocation 
was bound to go before a judge. This bill proposed to abolish that 
system and invest the comptroller with power to deal with such cases. 
The instruction of which his honorable and learned friend had given 
notice was that there should be a judge to whom all matters under 
this bill should be referred. At present the bill only gave the judge 
power to deal with certain cases under the bill. 

Mr. Speaker. An amendment can be moved in the committee 
stage to transfer to a judge those matters proposed to be sent to the 
comptroller. 

Mr. Cave said that what he desired was that the committee should 
have power to consider the question of referring to a judge, or a 
division of the high court, not only arising matters under this bill, but 
all patent matters. While that was no doubt outside the clauses of 
the bill, he thought it was within the general scope and intention of 
the bill. 



PATENTS AND DESIGNS BILL. 33 

Mr. Speaker. I think tliat is beyond the scope of the bill which is to 
''amend the law relating to patents and designs." The honorable 
member proposes to go beyond that. 

[Commons, August 9, 1907.] 

As amended (by the standing committee), considered. 
New clause: 

A defendant in an action for infringement of a patent, if entitled to present a peti- 
tion to the court for the revocation of the patent, may without presenting such a peti- 
tion apply in accordance with the rules of the supreme court by way of counterclaim 
in the action for the revocation of the patent.— (Mr. Lloyd-George.) 

Brought up and read the first and second times, and added to the 
bill. 

New clause: 

Rules may be made under the principal act for regulating the matters dealt with in 
subsections 2 and 3 of section 47 and in section 48 of the principal act, which relate 
to the form and manner in which applications for the registration of designs are to be 
made, and on the coming into operation of any such rules the said enactments shall 
be repealed. — (Mr. Lloyd-George.) 

Brought up and read the first time and second time, and added to 
the bill. 

Mr. Lloyd-George, in moving a new clause (procedure on petitions 
for extension of term of patent), said that he submitted it to the house 
in redemption of a pledge which he had given in committee to the 
honorable and gallant member for Handsw^orth. It did not go quite 
as far as the clause proposed by the honorable and gallant gentleman 
in committee, but it went as far as they could safely do at present. 

New clause: 

The following section shall be substituted for section 25 of the principal act: (1) A 
patentee may, after advertising in manner provided by rules of the supreme court, 
his intention to do so, present a petition to the court praying that his patent may be 
extended for a further term, but such petition must be presented at least six months 
before the time limited for the expiration of the patent; (2) any person may give notice 
to the court of objection to the extension; (3) on the hearing of any petition under 
this section the patentee and any person who has given such notice of objection shall 
be made parties to the proceeding, and the comptroller shall be entitled to appear and 
be heard, and shall appear if so directed by the court; (4) the court in considering 
its decision shall have regard to the nature and merits of the invention in relation to 
the public, to the profits made by the patentee as such, and to all the circumstances 
of the case; (5) if it appears to the court that the patentee has been inadequately 
remunerated by his patent, the court may by order extend the term of the patent 
for a further term not exceeding 7, or, in exceptional cases, 14 years, or may order 
the grant of a new patent for such term as may be specified in the order and contain- 
ing any restrictions, conditions, and provisions the court may think fit.^ — (Mr. Lloyd- 
George.) 

Brought up and read a first time. 

Motion made and question proposed, ^'That the clause be read a 
second time." 

Mr. Meysey-Thompson (StafTordshire, Handsw^orth) said tliat in 
rising to speak on this new clause he wished first of all to acknowl- 
edge the ability and courtesy displayed by the president of the board 
of trade mth regard to this question. On the first occasion on 
which lie called the attention of the house to the necessity of reduc- 
ing the cost and increasing the facilities for the extension of the 
period of protection in the case of small patentees, the president of 
the board of trade immediately and very courteously adopted the 

40296—12 3 



34 PATENTS AND DESIGNS BILL. 

suggestion and declared his intention of embodying a clause in the 
bill to cover what he advocated. Afterwards, when in committee 
he brought forward his new clause, the president of the board of 
trade gave the matter his most careful consideration and eventually he 
brought in the clause as it now stood, to which he would give his cordial 
support. Naturally, he would have preferred the new clause in its 
original form as he introduced it, namely, that the authority who 
was to deal with the extension of the period of protection should be 
the comptroller of the patent office, since his object was especially 
to reduce the cost of and to simplify the process of extension which 
he honestly thought would be best accomplished by the clause as 
it stood in his name on the paper. Briefly the case was as follows: 
At present an application by a patentee for an extension of the period 
of protection must come before the judicial committee of the privy 
council, a process which costs the patentee at least £500 and fre- 
quently a much larger sum. This put it quite out of the reach of 
the small patentee. By this new clause he proposed that the comp- 
troller of the patent office, who originally caused the patent to be 
granted, and who might if he thought fit, refer the application to the 
president of the board of trade, should have power to grant an 
extension of the period of protection. This would be a very simple 
and inexpensive process. In the new^ clause adopted by the presi- 
dent of the board of trade the authority to grant the extension 
should be a judge of the supreme court instead of the comptroller 
of the patent office. This, he thought, would be more expensive 
than his own proposal. Still, being convinced that the president 
had done his level best for this new clause, and as he understood 
from him that under this clause the cost would be reduced from £500 
to something like £50, or possibly £25, he thought that a very sub- 
stantial boon would be conferred upon a large class of workingmen 
who were eminently deserving of their encouragement and support. 
These were the class of men who lent dignity to labor, who instead 
of merely trying to get through their day's work with as little trouble 
as possible threw themselves heart and soul into their employment; 
who studied how they could improve the machinery with which 
they daily worked; spent their leisure hours in trying to develop 
such small improvements, and applied for a patent to protect the 
result of their energy and ingenuity. Surely these people w^ere 
deserving of help, and it was with the object of making it easier for 
them to reap their just reward that he had put forward his new 
clause. They all thought that their geese were swans, but in this 
ease he preferred to compare his new clause to the ugly duckling of 
the fable who grew up into a swan, and he hoped that now that the 
ugly duckling had struggled through its earlier and most dangerous 
period of existence under the ger ial and generous support of the 
president of the board of trade and was now fledged it might accom- 
plish the object that they had in view, namely, to bring increased profit 
and pleasure to many who were entitled to all the assistance which 
they had it in their power to give them. He therefore thanked 
the president for his adoption of the clause, and had great pleasure 
in supporting the proposed clause and withdrawing his own, w^hich 
had been so generously met by the clause the right honorable 
gentleman had now introduced. 



PATENTS AND DESIGNS BILL. 35 

Mr. Staveley-Hill (StafTonKshiro, Kinj^svvinford) said ho had read 
with caro the clause which the lionorable and galhint inember for 
Handsworth had proposed in committee, and agreed with every 
particidar in it, but he t]iouo:ht they ought to fall in with the clause 
now suggested by the president of the board of trade. He wanted to 
know, however, whether they were assured that the procedure pro- 
posed under the new clause would be removed from the judicial 
committee of the privy council to the supreme court. 

Mr. Lloyd-George said it would be removed to the supreme court 
and the case would be considered by specially ap])ointed judges. 

Question put and agreed to, and clause added to the bill. 

Mr. J. D. White, in moving a clause (exemption of innocent infringer 
from liability for damages), said that his object was to give the public 
some protection. As things at present stood, a patentee was under 
no obligation whatever to notify the public that there was a patent 
for the article, and the object of the amendment was that even if 
the article was marked '' patent" it should not be deemed to con- 
stitute notice of the existing patent unless the word was accompanied 
by the 3'ear and number of the patent. If a patentee wished to 
secure damages for the infringement of his patent, the first thing 
he should do was to communicate with the infringer. It seemed to 
him to be an abuse of the system to mark an article with the word 
^'patent" so as to prevent competition after the patent had really 
expired. Of course the amendment provided that nothing in the 
new section should affect any proceedings for an injunction. He 
would like to make two small amendments in the clause which had 
been suggested to him. In the first line, after the word ^'damages/' 
to insert ^4n respect of any infringement" ; and in the third line to 
strike out the second, ^^the" and substitute ^^such." 

New clause: 

A patentee shall not be entitled to recover any damages in an action for infringe- 
ment commenced after the commencement of this act from any defendant who proves 
that at the date of the infringement he was not aware of the existence of the patent, 
and the marking of an article with the word "patent," "patented," or any word or 
words expressing or implying that a patent has been obtained for the article stamped, 
engraved, impressed on, or otherwise applied to the article, shall not be deemed to 
constitute notice of the existence of the patent unless the word or words are accom- 
panied by the year and number of the patent. 

Provided that nothing in this section shall affect any proceedings for an in junction. — 
(Mr. J. D. White.) 

Brought up and read a first time. 

Question proposed, '^That the clause be read a second time." 
Lord II . Cecil said he could not believe that the Government would 
accept such a provision. In the case of saccharine and other chemi- 
cal patented articles which were row imported into this country, 
how on earth were they to mark them as proposed by the clause ? 
A common defense w^as that the infringer of a patent did not know 
that the imported article was imported or was a breach of a patent 
or that he thought that it was made in such a way that it did not 
infringe the patent. It was no defense for taking away another 
man's property to say that it was taken in ignorance. Surely it 
would be a monstrous proposition that under no circumstances was 
a patentee to be able to recover damages under this clause for 
infringement of the patent of any chemical material, because such 
material could not be stamped. 



36 PATENTS AND DESIGNS BILL. 

Mr. Lloyd-George, in accepting the new clause, pointed out that the 
matter was discussed very fully and at very great length upstairs, and 
he recognized at that time the difficulty of the question. The general 
if not the unanimous feeling of the committee was in favor of some- 
thing of this kind being inserted in the bill. The object was to secure 
that every patented article should contain some notification, not only 
of the fact that it was patented, but of the date on which the patent 
was granted. The Government therefore accepted a clause dealing 
with the question. At the time they accepted it they were satisfied 
that it met the exigencies of the case; what they meant to deal with 
was this, that at present there was no doubt that the patentee could 
go on manufacturing a patented article and selling it as patented 
long after the patent had expired, say, 60 or 70 years after. He 
thought they ought to take the American precedent and mark the 
product, but of course if they could not, as in the case of chemicals, 
mark the product, they must mark the bag. 

Lord R. Cecil said the bulk in the bag was split up and the product 
sold retail in small quantities. 

Mr. Lloyd-George admitted that of course that might be done, but 
said he was not satisfied with the clause of the bill as it passed away 
from the committee, and he thought after consulting his advisers that 
this proposed new clause was the fairest way of carrying out the inten- 
tion he had. 

Mr. Astbury (Lancashire, Southport) asked the right honorable 
gentleman to make three alterations in the clause, otherwise he thought 
it would be wholly unworkable. First of all, it ought to be limited 
to patents granted after the passing of this act. It was not fair that 
people who already possessed and were working patents should have 
their trade interfered with retrospectively. Secondly, he suggested 
that after the word '^ aware," in line 4 of the amendment, the words 
^^or could not with reasonable diligence have become aware" should 
be inserted; and thirdly, that after the words ''marking of an article," 
in the same line, the words ''or the case of or covering in which the 
article is contained" should be inserted. If these changes were made 
he thought the clause would be much more operative and valid than 
it was at present. 

Mr. Cave said that this was an entirely new departure in the patent 
law of this country, and would seriously affect a great many people. 

Mr. Lloyd-George said it was not a departure from the practice 
which prevailed in other countries. 

Mr. Cave said the effect of the clause was this: A patentee might 
get an injunction against infringement, but he could not get damages 
unless he proved that the infringer knew of the existence of the 
patent. That opened a door to fraud, because a man who had knowl- 
edge might go on infringing, and when the action came on he might 
say he did not know of the patent. It was sometimes very difficult 
to prove knowledge, though knowledge existed. The profits from an 
infringement might be very large, and yet if the infringer chose to 
say that he was not aware that he was infringing the patent and was 
doing so innocently, he was to keep the profits he had made and 
deprive the patentee of them. He thought the right honorable gen- 
tleman was hasty in accepting the clause, which was not of such a 
nature that it should be adopted at short notice. 

Mr. Lloyd-George said that the chambers of commerce had asked 
for this. [Cries of "No!"] 



PATENTS AND DESIGNS BILL. 37 

Mr. Cave said another point was that there were certain patents, 
such as patents for chemical processes, on which a mark could not 
be put as suggested by the clause. He knew the right honorable gen- 
tleman was anxious to do what was fair, but he did not think he should 
accept this clause. 

Mr. Napier (Kent, Faversham) objected to the amendment. As to 
the infringer not knowing whether he was infringing a patent or not, 
he often did not know because he did not choose to know. If this 
amendment was carried it would distinctly encourage the multiplying 
of that class of person who made articles and made them purposely 
without inquiring whether there was any patent which would hinder 
him from making that article. This was, in his opinion, a very dan- 
gerous clause. 

Lord Balcarres (Lancashire, Chorley) said he sympathized with his 
honorable friend in the desire he had embodied in this clause, and he 
thought the}^ wanted it in a different form — something more drastic, 
but, at the same time, something workable. There were a good many 
things which could not be marked, such as chemicals, which could 
only be marked on the bags. Flour was another article which could 
not be marked except in the bulk, either with the word ^^ patent" or 
'' patented," or with the date of the granting of the patent. As soon 
as the article was sold retail that safeguard went. He thought the 
object of the clause was good, and was not surprised that the chambers 
of commerce should desire something of this sort. 

Sir F. Channing (Northamptonshire, E.) thought the danger of the 
patentee suffering from this clause was illusory. If a notification were 
placed on an article or upon the case containing it, it would be a 
warning against infringement and the best possible protection to the 
patentee. 

Mr. Austen Chamberlain hoped the president of the board of trade 
would reconsider his decision on the subject. It was to secure a 
monopoly that a patent was granted by the State, and it was impor- 
tant that it should be duly carried out, and the patentees should be 
able to carry out their patent rights on reasonable terms. This clause, 
however, might involve great hardship to an inventor. A person 
might become rich and make a large sum out of the invention of 
another, and they ought not, he thought, to prevent an inventor from 
recovering damages when use was made of his invention without any 
license from him. The onus was put upon the patentee, and he thought 
that the possible result would be that the patentee would be subjected 
to great hardship. The result of the clause might very often be that 
the man who could more easily afford to lose would make a profit to 
which he was not entitled, at the expense of the man who ought to 
make the profit. 

Mr. Bowles (Lambeth, Norwood) said he could not believe that the 
president of the board of trade was going to press this clause, which 
must press most hardly on the great majority of patentees. The 
great majority of patentees at the present time were not working in 
accordance with this section. That was to say, they did not mark 
the patent with the date of patent and the number. If this clause 
were passed, every one of the patents now in existence would be at 
the mercy of anyone who chose to infringe them. If the person did 
not know or it could not be proved that he knew that he was infring- 
ing a patent, he thought it would be a most improper thing to proceed 



38 



PATENTS AND DESIGNS BILL. 



with a clause like this with so attenuated a house. The right honor- 
able gentleman could not really have contemplated the results of this 
clause, and therefore under the circumstances he hoped he would give 
more time to its consideration with the view to safeguarding existing 
patents. 

Mr. Gordon (Londonderry, S.) said he could not see any means by 
which the purchaser of an infringement of a patent could know that 
it was an infringement, and if this clause were accepted he would be 
allowed to go scot free until the patentee had found him out. He 
suggested that the right honorable gentleman ought not to open the 
door to frauds of that kind. 

Mr. Berridge (Warwick and Leamington) said that if the clause 
was passed in its present form the very remarkable result would fol- 
low that a premium would be given to people to go about infringing 
patents without caring whether they were doing so or not. 

Question put. 

The House divided: Ayes, 138; noes, 34. (Division List No. 
399.) 



AYES. 



Ainsworth, John Stirling. 

Asquith, Rt. Hon. Herbert Henry. 

Baker, Joseph A. (Finsbury, E.) 

Balfour, Robert (Lanark). 

Barnes, G. N. 

Barran, Rowland Hirst. 

Barry, Redmond J. (Tyrone, N.). 

Beale, W. P. 

Bell, Richard. 

Benn, W. (T'w'r. Hamlets, St. George). 

Birrell, Rt. Hon. Augustine. 

Black, Arthur W. 

Bowerman, C. W. 

Brace, William. 

Branch, James. 

Brigg, John. 

Burns, Rt. Hon. John. 

Burt, Rt. Hon. Thomas. 

Byles, William Pollard. 

Campbell-Bannerman, Sir H. 

Carr-Gomm, H. W. 

Causton, Rt. Hon. Richard Knight. 

Cheetham, John Frederick. 

Cherry, Rt. Hon. R. R. 

Clynes, J. R. 

Collins, Stephen (Lambeth). 

Corbett, C. H. (Sussex, E. Grinstead.) 

Cowan, W. H. 

Cox, Harold. 

Crooks, William. 

Dalziel, James Henry. 

Davies, Timothy (Fulham). 

Duckworth, James. 

Duncan, C. (Barrow-in-Furness). 

Dunn, A. Edward (Camborne). 

Edwards, Clement (Denbigh). 

Edwards, Enoch (Hanley). 

Elibank, Master of. 

Erskine, David C. 

Essex, R. W. 

Fen wick, Charles. 

Ffrench, Peter. 

Fuller, John Michael F. 



Gladstone, Rt. Hon. Herbert John. 

Gooch, George Peabody. 

Greenwood, G. (Peterborough). 

Grey, Rt. Hon. Sir Edward. 

Haldane, Rt. Hon. Richard B. 

Hardy, George A. (Suffolk). 

Harvey, A. G. C. (Rochdale). 

Hazel, Dr. A. E. 

Hazleton, Richard. 

Henderson, Arthur (Durham). 

Henderson, J. M. (Aberdeen, W.). 

Henry, Charles S. 

Holden, E. Hopkinson. 

Horniman, Emslie John. 

Idris, T. H. W. 

Jones, Sir D. Brynmor (Swansea). 

Jones, William (Carnarvonshire). 

Kearley, Hudson E. 

Kekewich, Sir George. 

King, Alfred John (Knutsford). 

Laidlaw, Robert. 

Lambert, George. 

Lamont, Norman. 

Lardner, James Carrige Rushe. 

Lehmann, R. C. 

Levy, Sir Maurice. 

Lewis, John Herbert. 

Lloyd-George, Rt. Hon. David. 

Lupton, Arnold. 

Macdonald, J. M. (Falkirk B'ghs). 

Maclean, Donald. 

Macnamara, Dr. Thomas J. 

MacVeagh, Jeremiah (Down, S.). 

McCallum, John M. 

McKenna, Rt. Hon. Reginald. 

McKillop, W. 

McLaren, H. D. (Stafford, W.). 

Maddison, Frederick. 

Markham, Arthur Basil. 

Marks, G. Croydon (Launceston). 

Massie, J. 

Micklem, Nathaniel. 

Morgan, G. Hay (Cornwall). 



PATENTS AND DESIGNS BILL. 



39 



Morley, Rt. Hon. John. 

Morreil, Philip. 

Morton, Alpheus Cleophas. 

Nicholls. George. 

Nolan, Joseph. 

Norton, Capt. Cecil William. 

O'Brien, Patrick (Kilkenny). 

O' Grady, J. 

Pearce, Robert (Staffs, Leek). 

Philipps, Owen C. (Pembroke). 

Price, C. E. (Edinburgh, Central). 

Rainy, A. Rolland. 

Rea, Russell (Gloucester). 

Richards, T. F. (Wolverhampton). 

Ridsdale, E. A. 

Roberts, G. H. (Norwich). 

Robertson, Sir G. Scott (Bradford). 

Robertson, J. M. (Tyneside). 

Robson, Sir William Snowdon. 

Rowlands, J. 

Russell, T. W. 

Seddon, J. 

Sherwell, Arthur James. 

Shipman. Dr. John G. 

Silcock, Thomas Ball. 

Simon, John Allsebrook. 



Sinclair, Rt. Hon. John. 

Snowden, P. 

Stanger, H. Y. 

Strauss, E. A. (Abingdon). 

Sutherland, J. E. 

Taylor, Austin (East Toxteth). 

Torrance, Sir A.M. 

Ure, Alexander. 

Verney, F. W. 

Walker, H. De R. (Leicester). 

Walters, John Tudor. 

Ward, John (Stoke upon Trent). 

Waring, Walter. 

Waterlow, D. S. 

White, George (Norfolk). 

AVhite, J. D. (Dumbartonshire). 

White, Luke (York, E. R.). 

White, Patrick (Meath, North). 

Whitley, John Henry (Halifax). 

Whittaker, Sir Thomas Palmer. 

Williams, Llewelyn (Carmarthn). 

Wilson, Henry J. (York, W. R.). 

Wils(m, J. H. (Middlesbrough). 

Wilson, P. W. (St. Pancras, S.). 

Wilson, W. T. (Westhoughton). 

Yoxall, James Henry. 



Tellers for the ayes — Mr. Whiteley and Mr. J. A. Pease. 



NOES. 



Astbury, John Meir. 

Balcarres, Lord. 

Beach, Hon. Michael Hugh Hicks. 

Berridge, T. H. D. 

Bowles, G. Stewart. 

Boyle, Sir Edward. 

Brunner. J. F. L. (Lanes., Leigh). 

Cavendish, Rt. Hon. Victor C. W. 

Cecil, Lord John P. Joicey-. 

Chamberlain, Rt. Hon. J. A. (Wore). 

Chaplin, Rt. Hon. Henry. 

Corbett, T. L. (Down, North). 

Douglas, Rt. Hon. A. Akers-. 

FelL Arthur. 

Forster, Henry William. 

Gordon, J. 

Harrison-Broadley, H. B. 



Hunt, Rowland. 

Meysey-Thompson, E. C. 

Mildmay, Francis Bingham. 

Moore, William. 

Morpeth, Viscount. 

Napier, T. B. 

Nicholson, W. G. (Petersfield). 

Nield, Herbert. 

Radford, G. H. 

Rawlinson, John Frederick Peel. 

Scott, Sir S. (Marylebone, W.). 

Sloan, Thomas Henry. 

Staveley-Hill, Henry (Staff'sh.). 

Talbot, Lord E. (Chichester). 

Thomson, W. Mitchell- (Lanark). 

Valentia, Viscount. 

Younger, George. 



Tellers for the noes — Lord Robert Cecil and Mr. Cave. 

Mr. Rawlinson (Cambridge University) said that he desired to 
amend the clause by inserting after the word ^infringement" the 
words ^^of a patent granted after the passing of this act," the object 
being to exclude patents noAv in existence. 

Amendment proposed to the proposed clause — 

In line 1, after the word "infringement," to insert the words "of a patent granted 
after the passing of this act." — (Mr. Rawlinson.) 

Question proposed, '^That those words be there inserted." 

Mr. Lloyd-George. I accept that. 

Question put, and agreed to. 

Mr. Kawlinson said he had a further amendment, the object of 
which was to get over the difficulty which was present in all infringe- 
ment cases showing that a man had knowledge of the fact that he 
was infringing a patent. The object of the amendment was perfectly 
simple. He begged to move. 



40 PATENTS AND DESIGNS BILL. 

Amendment proposed to the proposed clause — 

In line 4, after the words "where he is not aware," to insert the words "or had 
reasonable means of making himself aware." — (Mr. Kawlinson.) 

Question proposed, '^Tliat those words be there inserted." 

Mr. Lloyd-George said he could not accept these words, as he was 
not quite sure that the form of words was the best that could be 
found for the purpose, but he would accept the amendment in sub- 
stance and would either accept these words or find alternative words 
which effected the same purpose. 

Proposed clause, as amended, added to the bill. 

The following amendments were proposed and agreed to without 
discussion: 

In page 1, line 15, after the word "devolve," to insert the words "on his personal 

representatives. ' ' — (Mr. Lloyd-George . ) 

In page 2, line 8, to leave out from the word "the" to the word "principal," in line 

10.— (Mr. Cave.) 
In page 2, lines 13 and 14, to leave out the words "required by the comptroller," 

and to insert the words "in any particular case the comptroller considers it desirable 

so to require." 

In page 2, line 16, to leave out the words "applicants have," and to insert the words 

"applicant has." 
In page 2, line 18, to leave out the word "have," and to insert the word "has." 
In page 2, line 20, after the word "inventions," to insert the words "are such as to 

constitute a single invention and." — (Mr. Lloyd-George.) 
In page 2, line 32, after the word "on," to insert the words "or modification of." 

(Mr. Astbury.) 
In page 3, line 14, after the word "an," to insert the word "extended." 
In page 3, line 36, after the word "wholly," to insert the words "and specifically." 
In page 3, line 36, to leave out the words "or described." — (Mr. Lloyd -George.) 
In page 4, line 28, to leave out the word "for," and to insert the word "after." 
In page 4, line 30, to leave out the word "substituted " and to insert the word 

"added." 
In page 4, line 30, after the word "words," to insert the word "or." 
In page 4, line 31, to leave out the words "described or," and to insert the words 

"wholly and specifically." — (Mr. Cave.) 

Amendment proposed to the bill — 

In page 4, line 33, after the word "opposed," to insert "being a specification 
deposited pursuant to an application made 50 years or less before the date of the 
application for such last -mentioned patents' or has been described in any such specifi- 
cation published before the date of the application." — (Mr. Lloyd-George.) 

Question proposed, '^That those words be there inserted." 

Mr. Cave thought there had been some oversight in connection with 
this amendment. He had had the advantage of a conversation with 
the right honorable gentleman, and he understood him to drop 
entirely the power of the comptroller to deal with the position of patents 
thus described. 

Mr. Lloyd-George said it was an oversight. He was quite willing 
his amendment should end with the words '4ast-mentioned patent." 

Mr. J. Ward (Stoke-on-Trent) hoped the right honorable gentleman 
was not going to give away the whole purport of the bill in order to 
get it through that afternoon. These matters were very fully 
discussed in detail in committee, and he was surprised to find that 
things agreed to were now in the final stages being abandoned. It 
looked to him as though they were losing the best part of the bill. 

Mr. Lloyd-George assured the honorable member there was nothing 
vital in the words he was omitting. 

Amendment, by leave, withdrawn. 



PATENTS AND DESIGNS BILL. 41 

A^mendment proposed and agreed to without discussion — 

In page 4, line 33, after the word "opposed," to insert the words "l)y a specification 
deposited pursuant to an apphcalion made 50 years or less before the date of the 
application for such last-mentioned patent." — (Mr. Lloyd-Cxeorge.) 

In page 4, line 33, after the word "opposed," to insert the words "or described in 
any specification which has been published before the date of such application." — 
(Mr. Astbury.) 

In page 4, line 33, to leave out from the word "opposed " to the word "or, " in line 
35.— (Mr. Cave.) 

In page 4, line 39, to leave out subsection (2). — (Mr. Cave.) 

In page 5, lines 15 and 16, to leave out the words "eight or section nine of the princi- 
pal act," and to insert the words "three of the patents, designs, and trade-marks 
amendment act, 1885." 

In page 5, line 24, to leave out the words "or the comptroller." — (Mr. Lloyd-George.) 

Amendment proposed to the bill — 

In page 5, line 25, to leave out the words "or the comptroller." — (Mr. Lloyd-George.) 

Mr. J. Ward said he must protest against striking out the words 
^^or the comptroller." He remembered tliat in committee there was 
a discussion of nearly three hours on these very words. 

Mr. Lloyd-George said this was not the clause tq which the honor- 
able member was referring, and when they reached that clause he 
would adhere to the words relating to the comptroller. In this 
instance the omission of the words was purely a drafting matter. He 
was told by the draftsman that to retain the words would m^ake 
interpretation of the clause diflicult, and it was necessary to leave 
them out. 

Mr. J. Ward. I hope I can trust you. 

Amendment agreed to. 

Mr. Cave moved to leave out clause 14, which, lie said, operated 
very hardly on a patentee wlio, having got capital and plant together, 
and having a fair prospect of getting some profit out of his patent, 
might find himself, at aiiy time within four years, in the position of 
having to defend his patent at very great expense indeed. Of course, 
if the opponent lost he might have to pay the costs, but in many 
cases the patentee was not a wealthy man, and would rather surrender 
his patent and climb down, possibly on terms, than run the risk of 
very heavy litigation. He did not think that was right or wise. He 
thought it far better to act on the English ])rinciple that a patent 
once granted was good unless it was held bad in an action specially 
fra^med for that purpose, and that this important power of revocation 
should be exercised not by the comptroller, but only by a court of 
law. Questions of patents raised points of very great technical 
difficulty which taxed the capacity of even the judges for the high 
court; and, with the greatest respect, he thought tlie duty of revoca- 
tion ought not to be left to the comptroller. The house ought to be 
very careful about interference with the rules designed for the protec- 
tion of inventors, on whom a great part of the industries of the 
country depended. 

Mr. Staveley-Hill seconded the amendment. 

Mr. Speaker. I wid first of all put the question to omit the first line 
and a half of the clause, and if both sides agree upon that, then I will 
put the whole clause. 

Amendment proposed — 

In page 5, line 39, to leave out from the beginning to the word "any," in line 40. 
Question put, and agreed to. 



42 PATENTS AND DESIGNS BILL. 

Amendment proposed — 

In page 5, line 40, to leave out from the word "any " to the end of the clause. — (Mr. 
Cave.) 

Question proposed, ^^That the word ^any' stand part of the bill." 

Mr. Lloyd-George said this was a matter which had been very 
carefully considered, the clause having no doubt met with opposition 
from some quarters. Out of about 17,000 patents granted, a very 
small percentage really became operative, and a large number were 
retained on the register simply for the purpose of blocking other 
perfectly bona fide inventions, thoroughly practical, which would 
serve an excellent purpose if they were patented. What the clause 
proposed was that there should be a simple procedure for getting rid 
of these blocking patents, and there were thousands of them simply 
cumbering the register at present. He was prepared, however, to 
assent to one or two modifications of the clause, recognizing that they 
must introduce some security into the life of a patent. If a consider- 
able sum of money was spent on buildings and developments, it might 
be thought rather hard that the patent should be upset simply by a 
decision of the comptroller. But anyone who seriously wanted to 
upset a patent of that kind would not go to the comptroller under 
this section, for the simple reason that the ground would be very 
limited. Any man who wanted to upset a patent would put about 
20 or 30 counts into his petition, and would not risk the whole 
thing on the very narrow ground stated in the section. He was 
perfectly prepared to accept the amendment of his honorable friend 
the member for Launceston, cutting down the four years to two years. 
If the honorable gentleman felt that there was any real danger as to 
security, he did not mind going beyond the court of first instance. 
That would insure complete protection. He would cut down the 
limit of time from four years to two, and allow the petitioner to carry 
an appeal from the court of first instance to the court of appeal and 
the House of Lords. These modifications could not be made now, 
but they might be made in another place. 

Lord R. Cecil feared the procedure proposed would very much 
increase the cost of proceedings in patent actions. He could not 
himself see the advantage of approaching the matter by way of the 
comptroller instead of the court. Under the present procedure, once 
they obtained the fiat of the attorney general, they could go to the 
court and then to the House of Lords. 

Mr. Lloyd-George admitted that this might be the case if the patent 
was a genuine one, but the object there was to get at patents which 
were not bona fide. In those cases there w^ould be an application 
before the comptroller, and there would hardly be any defense at all. 

Lord R. Cecil thought that when the parties concerned were rich 
and foreign pirates, whose object was to ruin their competitors, they 
would probably carry the case to the highest court of appeal. His 
experience was that these attempts to meet hard cases always put 
weapons into the hands of the rich, which they used against the poor. 
He trusted the amendment would be accepted. 

Mr. J. Ward (Stoke-on-Trent) hoped the president of the board of 
trade would not concede another point in regard to the clause. A 
poor patentee if he had a useful patent ought to be able to secure it, 
although he might not have the financial resources necessary to work 



PATENTS AND DESIGNS BILL. 43 

it. A rich syndicate might come along and take out a patent for 
precisely the same mechanism. 

Lord R. Cecil. They could not do it. 

Mr. J. Ward said the bill presupposed that such a thing could be 
done. 

Amendment negatived. 

Amendments proposed — 

In page 6, lines 4 and 5, to leave out the words "a patent may be opposed,'' and 
insert the words "the patent might have been opposed.'' 

In page 6, line 5, at end, to insert the words ""Provided, That when an action for 
infringement or proceedings for the revocation of the patent are pending in any court, 
an application under this section shall not be made except with the leave of the court." 

In page 6, line 10, after the word ■'application," to insert the words ''but the 
comptroller shall not make an order revoking the patent unless the circumstances are 
such as would have justified him in refusing to grant the patent had the proceedings 
been proceedings in an opposition to the grant of a patent." — (Mr. Lloyd-George.) 

Amendments agreed to. 
Amendment proposed to the bill — 

In page 6, line 10, at end, to insert the words "(3) On the hearing of such petition 
the comptroller and court shall have the same powers of requiring amendment of 
specification, and shall be guided in their decision by the same principle as in the 
case of an opposition to the grant of a patent.'' — (Mr. Radford.) 

Question proposed, "That those words be there inserted." 

Mr. Lloyd-George assured the honorable member that the words he 
suggested were not necessary. 

Amendment, by leave, withdrawn. 

Lord R. Cecil moved to leave out clause 15. The proposal in this 
clause with relation to the revocation of patents worked outside the 
United Kingdom was really a crude form of protection, affording no 
help to the poor patentee. It would have no advantage at all, except 
that it would be to some extent protective in its action. He believed 
the inevitable result would be what always happened when protective 
measures were resorted to; it would hit those by whom it was imposed. 
The clause provided — 

At any time not less than four years after the date of a patent any person may apply 
to the comptroller for the revocation of the patent on the ground that the patented 
article or process is manufactured or carried on exclusively or mainly outside the 
United Kingdom. 

In other words, the patentee was to be compelled in the first four years 
of the patent to make a substantial use of it in the United Kingdom. 
They were told on the first and second reading of the bill that this 
clause was directed against the ''rich pirate," but he believed that 
it was the poor man who would be hit, the man who had patented a 
meritorious invention, and then had difficulty in collecting enough 
money to start manufacture within the prescribed time. He begged 
to move. 

Mr. Napier seconded the amendment. 

Amendment proposed to the bill — 

In page 5, line 19, to leave out clause 15. — (Lord R. Cecil.) 

Question proposed, ''That the words 'At any time not less than 
four years after the date of a patent,' stand part of the bill." 

Mr. Lloyd-George said that the clause was the pith of the bill. He 
pointed out that in many instances the privilege granted by the 
Crown in respect of patent rights, instead of being used to start 



44 PATENTS AND DESIGNS BILL. 

British industries, was used to prevent other persons from estabhshing 
industries in the United Kingdom, causing thereby an increased cost 
in the production. This clause, indeed, was purely in the interests of 
free trade, freedom of commerce, and industrial freedom. 

Mr. Bowles expressed the hope that what had fallen from the right 
honorable gentleman would have the effect of converting some of his 
own friends to join in the opposition to a clause which restricted to 
one country in the world the operations of a man who had secured a 
patent. [Cries of "No!"] That was his interpretation of the clause. 
The right honorable gentleman had the courage to tell the house that, 
instead of restricting, it increased a man's freedom. It was quite clear 
that the effect of the clause, so far as it had any effect at all, would 
be protective. There were other objections to the clause, but for that 
one alone he thought it ought to be rejected. 

Lord R. Cecil asked leave to withdraw the amendment. 

Amendment, by leave, withdrawn. 

Amendment proposed to the bill — 

In page 6, line 20, after the word "patent," to insert the words "granted after the 
commencement of this act, and in case of a patent previously granted at any time not 
less t]jan four years after the date of such patent and two years after the commencement 
of this act." — (Mr. Astbury.) 

Question, "That those words be here inserted," put, and agreed to. 

Mr. G. Croydon Marks (Cornwall, Launceston) moved to add to the 
clause the words, "for meeting or supplying a continuous demand 
existing for such patented article or process in the United Kingdom." 
The object of the amendment was to protect a patentee who might 
manufacture the article in America or Germany when there was a 
demand for it there, though during the first four years of the patent 
there might be no demand for the article in this country. Was a man 
to lose his rights in the patent in this country because he did not 
manufacture the article here at a time when there was no demand for 
it ? He held that it would not be fair to the patentee to deprive him 
of his rights in that way. Germany was about to alter her laws in 
regard to compulsory worldng of the patent in Germany, and France 
also was going to take the step of not compelling the working of a 
patented article in France. But why should we cut off the patentee's 
rig!it in his patent after four years because there was no demand for 
the patented article or process in the United Kingdom? Let them 
take the case of machinery for operating on fiber such as jute. At 
present that process was carried on in India, but why should a 
patentee lose his patent at the end of four years because there was no 
continuous demand for the article here ? A new fiber might be dis- 
covered in this country, such as from cabbage leaves, which might 
be treated with the patent machinery here, but a man should not be 
compelled to manufacture it until there was a known demand for it. 
He begged to move. 

Lord Balcarres seconded the amendment. He said he was very 
much interested in those processes which would be seriously affected 
by the bill as it stood, and representations had been made to him by 
manufacturers against the clause. Under the clause as it stood, 
wealthy foreign syndicates would have a right to keep their patents 
alive here. The comptroller had got to decide whether a process was 
mainly carried out inside or outside the United Kingdom; but there 
might be some articles, such as those made of steel, which involved 



PATENTS AND DESIGNS BILL. 45 

20 or 30 different patented processes. The duties imposed on 
the comptroller were already extremely difficult without his having 
to decide whether there was a continuous demand for a certain 
patented article or process in this country. The scheme of the 
amendment was one which ought to receive attention. 
Amendment proposed to the bill — 

In page 6, line 23, after the word "Kingdom," to insert the words "for meeting^ 
or supplying a continuous demand existing for such patented article or process in the 
United Kingdom." — (Mr. Croydon IMarks.) 

Question proposed, ^^That those words be there inserted." 

Mr. Lloyd-George said that it had been asked why, if there was no 
demand in this country for a certain patented article, should anyone 
go to the expense of setting up workshops for the manufacture of the 
article ? But, after all, this was a great exporting country, and it was 
our interest to manufacture for the whole world, and a patent might 
be wanted here for some article which was used for export purposes. 
From any point of view he could not accept the amendment. 

Mr. Barnes said that if the right honorable gentleman considered 
this matter, he would see that it really cut to the root of the question 
and defeated the object for which the bill had been introduced. The 
honorable member for Launceston had mentioned the jute industry, 
but that industry was started in this country, and a large number of 
manufacturers who had exploited the industry here now took 
advantage of the cheap labor in India and manufactured the jute 
there. 

Mr. G. Croydon Marks asked leave to withdraw his amendment. 

Amendment, by leave, withdrawn. 

Mr. Rawlinson moved to insert at the end of clause 15 the words 
^'or His Majesty's dominions beyond the seas." He took it that the 
object of the bill was to prevent a man taking out a patent in England 
and then manufacturing that article in France or Germany because 
he could get cheaper labor there. He put it that if the patent were 
to be kept alive in England it should be worked in England for the 
benefit of British workmen; and he thought that a similar advantage 
should be extended to the colonies, so as to give the colonies a certain 
preference. With that object, he ventured to press this amendment 
upon the House. It did not establish protection or colonial prefer- 
ence, but it gave the colonies some sort of preference. 

Mr. Napier seconded the amendment on the ground that it would^ 
he thought, not give a preference at all, but would slightly limit the 
protectionist character of the clause. It w^ould, at all events, enlarge 
the area from which the people of this country would be entitled^ 
possibly, to buy patented articles. ♦ 

Amendment proposed to the bill — 

In page 6, line 23, at the end, to insert the words "or His Majesty's dominions 
beyond the seas." — (Mr. Rawlinson.) 

Question proposed, ^^Tliat those words be there inserted in the bill.'^ 
Mr. Lloyd-George expressed his utter amazement that the honorable 
and learned gentleman should play so absolutely into the hands of his 
foes. Did he realize that this would give immunity to American 
patents ? All that would have to be done would be to set up a factory 
across the border in Canada, and every American industry would 
instantly be contracted out of the clause. Did he also know that in 



46 PATENTS AND DESIGNS BILL. 

Canada there was a compulsory working law ? That operated against 
the British patent and the American patent, and the Americans were 
obliged to set up factories in Canada, and they had done it. He could 
not conceive anything more dangerous than the inclusion of this 
amendment, which would cut out instantly every American patent. 
The acceptance of the amendment would make the clause absolutely 
futile. He hoped the honorable and learned gentleman would 
strengthen his hands by withdrawing his amendment. 

Lord R. Cecil said the speech made by the right honorable gentle- 
man was too striking for him not to say a word or two in reply. The 
right honorable gentleman was an advocate of free trade, and he as 
one who was in favor of promoting the free exchange of commodities 
practically said to his honorable friend if he pressed the amendment 
it would destroy the whole protective effect of this clause. The house 
would observe how the right honorable gentleman adopted the whole 
of his friend's argument. As to the argument against cheap labor, 
it was rather an old friend, and was directed against unfair competi- 
tion. They did not want protection to bolster up industries, but it 
was needed to prevent unfair competition. He should support this 
amendment. 

Mr. J. Ward said he fancied he had heard all these speeches before. 
He had heard them in the committee, and he thought they were dealt 
with very effectively then. He did not understand that there was 
any protection in the policy proposed. What was suggested was that 
when we were creating a monopoly and when the article w^as manu- 
factured the products of the monopoly should not be protected in 
this country under the patent laws. If the article could be produced 
more cheaply in other countries, then it would not be produced in 
this country; but they wished to provide that our fellow countrymen 
would not be prevented from competing if it could be produced here. 
They were not applying a protective tax, but it was an extension of 
free trade, as it gave our people the opportunity of making these 
things if they could make them. If they could not, the modification 
of the patent law would not affect the matter. 

Mr. Hills (Durham) supported the proposal of the board of trade. 
The amendment looked attractive at first sight, but we could not 
treat the Empire as one until it was one in reality. The objection 
to cheap labor was a very important one, and, although at first sight 
he was inclined to look with favor on the amendment, he thought on 
consideration it was a bad one. 

Mr. Rawlinson said that after the very able speech of the right 
honorable gentleman and the sound principles which he had enunci- 
ated, he would ask leave to withdraw the amendment, as he felt the 
country was safe in the right honorable gentleman's hands on this 
point. 

Amendment, by leave, withdrawn. 

The following amendments were proposed, and agreed to without 
discussion — 

In page?, Iine25, after the word "manufacture," to insert the words '^ and supply." — 
(Sir M. Levy.) 

In page 7, line 25, after the word "article," to insert the words "or any parts thereof 
which are necessary for its efficient working on reasonable terms." — (Sir M. Levy.) 

In page 7, line 26, after the word "extent," to insert the words "in the United King- 
dom." — (Mr. Astbury.) 

In page 7, line 27, after the word "existing," to insert the words "trade or."-^(Mr. 
Astbury.) 



PATENTS AND DESIGNS BILL. 47 

In page 7, line 28, after (ho word "new," to insert (he worchs "trade or." — (Mr. 
Astbury.) 

Mr. Cave moved an amendment to prevent subsection (h) of clause 
16 being retrospective. This subsection provided that the reasonable 
requirements oi the country shall not be deemed to have been satisfied 
if any trade or industry in the United Kingdom is unfairly prejudiced 
by the conditions attached to the purchase, hire, or use of the patented 
article or to using or working tlie patented process by virtue of any 
contract with the patentee '^whetlier" macie before ''or after'' the 
passing of the act. The honorable member said he also intended to 
move to leave out the words ''or after'' so as to restrict the subsection 
to a contract made before the passing of the bill. Unless this were 
done, they would make a man pay a penalty for something which was 
perfectly legal before the passing of this measure. 

Lord R. Cecil seconded the amendment. 

Amendment proposed to the bill — 

In page 7, line 38, to leave out the word "whether." — (Mr. Cave.) 

Question proposed, "That the word 'whether' stand part of the 
bill." 

Mr. Lloyd-George hoped the honorable member would not press 
this amendment, as full provision was made for compensation later 
on in the bill. 

Amendment negatived. 

Amendment proposed to the bill — 

In page 9, line 13, to leave out from the first word "and," and to insert the words 
*' After the expiration of the prescribed period the comptroller." — {Mr. Lloyd-George.) 

Amendment agreed to. 
Amendment proposed — 

In page 9, line 14, to leave out the w^ords "law officer," and to insert the word 
"court." — (Mr. Lloyd-George.) 

Question proposed, "That the word 'law ofiicer' stand part of the 
bill." 

Mr. Rawlinson asked whether if they carried this it would affect 
the discussion of the amendment which he had placed upon the paper 
to leave out subsection 1 of clause 26. 

Mr. Lloyd-George said he was told that it would not affect such a 
discussion . 

Lord R. Cecil asked whether the right honorable gentleman intended 
to go any further to-night, having regard to the fact that they were 
now approaching the discussion of clause 23, which was a most con- 
tentious clause, or whether the right honorable gentleman proposed 
when this amendment was agreed to to defer the discussion of clause 
23 to another day. 

Mr. Lloyd-George said it was not late, and there were many 
members now in the house who desired to discuss clause 23 who might 
not be present on another occasion, and he therefore thought they 
might be allowed to go on. 

Amendment agreed to. 

Amendment proposed — 

In page 9, lines 15 and 16, to leave out the words "of the comptroller." — (Mr. Ast- 
bury.) 

Amendment agreed to. 



48 PATENTS AND DESIGNS BILL. 

Mr. Cave moved the omission of clause 23, which, he said, avoided 
certain conditions which were now freely entered into between 
patentees and business men. The boot trade was quoted as a burning 
example in favor of this claim, and it was said that there were cases 
when the right to use a patent connected with the manufacture of 
boots had been refused except upon conditions that the licensee should 
use it for all boots which he might manufacture. But he believed 
that in spite of this condition the licensee had in fact made substantial 
profits. He knew it was said that the right had been abused. But 
where business men had found this particular mode of dealing most 
convenient — both parties to the bargain entering into it with knowl- 
edge of what they were about — it was a great mistake for Parliament 
to intervene and say it should be void. Apart from that, the clause 
was retrospective and avoided existing contracts. There was a com- 
pensation provision, but no compensation would make up for the 
avoidance of a contract entered into in the ordinary course of business 
and upon the faith of which important arrangements might have 
been made. By subsection (5) the insertion by the patentee in a 
contract made after the passing of this act of any condition which by 
virtue of the clause was null and void was made a ground on which 
the patent might be revoked. Even if the principle of the clause was 
assumed to be right, it was wrong to go so far as to say that if a man, 
by inadvertence, inserted one of these conditions in a contract, with 
A he should be unable to sue B for some flagrant infringement of the 
patent. That was a monstrous penalty to impose on a contractor. 
The purpose of the clause was to a great extent already met by clause 
16. The whole of clause 23 was very objectionable, and he strongly 
held the view that there should be no attempt to deal with the mis- 
chief which was said to exist in the drastic way proposed. 

Mr. Staveley-Hill seconded the amendment. He trusted that the 
president of the board of trade would look at this clause in the light 
in which it was regarded by many in the country. In the legal 
profession there was a common saying that '4iard cases made bad 
law." He thought, although this clause was directed to meeting 
hard cases, it would establish a very bad principle in English law. If 
it remained in the bill, it would constitute an interference with the 
freedom of contract between people who were quite able to conduct 
their business in their own way. They were not here legislating for 
children or minors but for grown persons who knew their own mind 
and were able to conduct their own affairs. Not only would it 
interfere with freedom of contract, but in some trades would bring 
about a state of things which would inflict great injustice on patentees. 
It would also act ''in restraint of trade." Therefore he hoped if the 
right honorable gentleman was not prepared to accept the motion of 
his honorable friend he would at least consider whether the clause 
could not be modified. 

Amendment proposed to the bill — 

In page 9, line 21, to leave out clause 23. — (Mr. Cave.) 

Question proposed, ''That the words proposed to be left out, to 
the word 'any,' in page 2, line 22, stand part of the bill." 

Mr. George White (Norfolk, NW.) said he would not have asked the 
Government to pass a general law affecting the commercial interests 
of the country merely because the existing law pressed hardly upon 



PATENTS AND DESIGNS BILL. 49 

a small industry, but they must judge of the necessity for a change in 
the law by the magnitude of the industry if it were so affected from 
the consequences of it, whether they were serious or not. There was 
a trade with which he was connected and which had grave complaint 
against the existing law. It was a large industry, and so far as 
machinery was concerned was practically in the hands of a syndicate 
which had attained its power in a way which would be prevented in 
the future if this clause was retained in the bill and became law. 
Seven or eight years ago the machinery of this trade was largely 
supplied by the United Machinery Co. That company was bought 
up by an American syndicate, and in addition to buying the machines 
which the company provided, it took care to buy up also such other 
machines as it conceived were absolutely necessary to the carrying 
on of the business. Consequently it became possessed of a monopoly, 
and upon the basis of that monopoly altered the conditions upon which 
the machinery could be obtained by this industry and made them of 
a very restrictive and tyrannical nature. A large part of the trade 
were not free agents in the matter at all. He himself was free from 
these contracts, because the firm with which he was connected 
obtained the bulk of its machines before the American syndicate 
established its monopoly. These leases extended the term of the 
patent to 20 years, and so got round the patent act, and they made 
additions to the machines, each addition extending the term of the 
lease, and thus the whole thing became a perpetual burden on the 
manufacturer. Three-fourths of the boot manufacturers of the 
country were unable to take up any other machines than those 
supplied by the syndicate. Very grave injustice was thus done to 
the whole industry and it would be largely removed by the passing 
of this clause. 

Lord R. Cecil said that the fundamental idea of the patent laws was 
to give the inventor a monopoly, in order to encourage inventions. 
A patentee might exact any terms he liked. Anyone might reject 
his machines, but no one did, because even with the restrictions 
placed by him on their use it was more profitable to use them. It 
was argued that the contracts of the syndicate referred to by the last 
speaker involved a restraint of trade which was against public policy ; 
but that doctrine had been so relaxed that it was now almost 
impossible to frame a contract which would be pronounced against 
public policy on that ground. It was held now that it was more in 
the interest of public policy that grown free men should be allowed 
to make what contracts they chose amongst themselves. That was 
the danger which attached to this clause. It was extremely widely 
drawTi; it was devised to deal with one particular case, and one case 
only, for he did not know of any other case of a like nature. Under 
this clause if there were put into an agreement any provision that 
the purchaser was only to use the patentee's article, the agreement 
was void. One could see at once how very hardly that might bear 
in particular cases. A man might have acquired a reputation for a 
particular kind of goods produced by a particular kind of machinery, 
and he might sell his machine to a comparatively ignorant user on 
the terms that he should use it and none other. He could im.agine 
many cases in which a perfectly reasonable provision of that kind 
might be made which would do no harm to anyone, even in the view 
of the honorable member for Norfolk, and to say in the particular 
40296—12 4 



50 PATENTS AND DESIGNS BILL. 

terms which this clause laid down that all such conditions and agree- 
ments were to be void was a somewhat dangerous form of legislation. 
Here was a hard case, and something must be done to settle it, and 
they did the something, and found out afterwards that it in itself was 
something very hard. He was satisfied that this clause, if accepted, 
would do the greatest possible injury to the industries of this country, 
and he therefore asked the president of the board of trade not to 
insist upon it. 

Mr. Lloj^d-George said he did not propose to enter very fully into 
this question, not because it was late in tlie session or late in the 
evening, but because they had dealt with it twice already very 
exhaustively. There had been a very considerable discussion on it 
on second reading, and he specially drew attention to this clause when 
he introduced the bill. There was also a full discussion upstairs, 
where two days were entirely devoted to the clause. The noble 
lord was not present on the first occasion, but he did not make that 
a cause of complaint, though he must be excused from again entering 
extensively into the question. His honorable friend had gone a 
little further by explaining one special case which had lately precipi- 
tated the action of the legislature in this matter. Tf a privilege were 
abused, surely the legislature which granted that privilege had a right 
to come in and say the limits w^hich were allowed when the monopoly 
was granted were being exceeded. This was a case in which for the 
first time they saw in their sheer nakedness the methods of the 
American trusts. The noble lord had argued a good deal about 
general principles as to trade, and he did not disagree with the 
principles he had laid down. He absolutely agreed with the noble 
lord about the fulfilling of contracts and as to men of mature judg- 
ment exercising caution. That was the only w^ay to develop a manly 
action. But this was not a case in which they had two traders on 
equal terms to begin with. This was a case in which one man had 
a monopoly which the community had given him and the other man 
was left without any defense at all. The boot industry in this 
country was practically compelled to take a certain machine. Those 
engaged in the industry were good business men and well able to hold 
their own in competition, but they were really obliged to sign a con- 
tract, and a more monstrous contract had never been submitted to an 
industry. Did the noble lord realize the extent of one of the clauses 
which was inserted in the contract? It compelled the use of this 
particular machine, and no other. Supposing there was another 
patent, either British or foreign, which revolutionized the trade as 
completely as this one did, and which it was just as necessary for 
the boot industry to utilize, nine-tenths of the industry would not 
be able to use the new machine for 20 years to begin with. That was 
not all. If an improvement of the invention for which a contract 
had been entered into was taken up at the end of 19 years, the trade 
was bound to take the improvement, and the lease was renewed for 
another 20 years. At the end of another 19 years there might be 
another improvement, and the boot industry would have to take that 
up for a further period. There was nothing in the contract to prevent 
a series of slight improvements which might be invented, enabling an 
equal number of extensions of the lease of its exclusive use to be made, 
conceivably obliging the boot trade to continue using the same 
riiachine for 300 years. The industry could not survive it, and the 



PATENTS AND DESIGNS BILL. 



51 



legislature was therefore bound to interfere in the general interest, 
not to protect individual bootmakers who had entered into a bad 
bargain, but in order to protect a very powerful industry, and to say 
that this country really could not stand the use of a privilege con- 
ferred by the Crown for the purpose of hampering a whole trade. 
The American Legislature had found it necessary to introduce a 
provision of this kind, and he knew of no country under the sun 
which would tolerate this kind of thing. In (^anada, he believed, it 
had been held by the judges to be a contract in restraint of trade. 
The judges, no doubt, here held it was not in the ordinary sense 
such a contract; but, at any rate, the legislature ought to come in 
and say that it was very prejudicial to the trade of the country. He 
therefore proposed this clause. There were one or two modifications 
which would be proposed later on. 

Question put. 

The House divided: Ayes, 79; noes, 13. (Division List No. 400.) 



AYES. 



Baker, Joseph A. (Finsbury E.). 

Balfour, Robert (Lanark). 

Barnes. G. N. 

Bell, Richard. 

Benn, W. (T'w'r Hamlets, St. George). 

Berridge, T. H. D. 

Bowerman, C. W. 

Branch, James. 

Brigg, John. 

Burns, Rt. Hon. John. 

Burt, Rt. Hon. Thomas. 

Byles, William Pollard. 

Carr-Gomm, H. W. 

Clarke, C. Goddard (Peckham). 

Corbett, C. H. (Sussex, E. Grinstead). 

Cornwall, Sir Edwin A. 

Cowan, W. H. 

Craig, Herbert J. (Tynemouth). 

Cremer, Sir William Randal. 

Crooks, William. 

Davies, Timothy (Fulham). 

Duncan, C. (Barrow-in-Furness). 

Dunn, A. Edward (Camborne). 

Edwards, Clement (Denbigh). 

Elibank, Master of. 

Essex, R. W. 

Fenwick, Charles. 

Ffrench, Peter. 

Findlay, Alexander. 

Fuller, John Michael F. 

Gooch, George Peabody. 

Hardy, George A. (Suffolk). 

Harvey, A. G. C. (Rochdale). 

Hazleton, Richard. 

Henderson, Arthur (Durham). 

Henry, Charles S. 

Idris, T. H. W. 

Jones, William (Carnarvonshire). 

Kearley, Hudson E. 

Kekewich, Sir George. 



King, Alfred John (Knutsford). 

Lambert, George. 

Lehmann, R. C. 

Jjloyd-George. Rt. Hon. David. 

Lupton, Arnold. 

Macdonald, J. M. (Falkirk B'ghs). 

MacVeagh, Jeremiah (Down, S.). 

McCallum, John M. 

McKenna, Rt. Hon. Reginald. 

McLaren, H. D. (Stafford, W.). 

Morton, Alpheus Cleophas. 

Nolan, Joseph. 

Norton, Capt. Cecil William. 

Price, C. E. (Edinburgh, Central). 

Ridsdale, E. A. 

Robertson, J. M. (Tyneside). 

Rowlands, J. 

Russell, T. W. 

Sherwell, Arthur James. 

Shipman, Dr. John G. 

Simon, John Allsebrook. 

Smeaton, Donald Mackenzie. 

Snowden, P. 

Stanger, H. Y. 

Torrance, Sir A. M. 

Verney, F. W. 

Walker, H. De R. (Leicester). 

Walters, John Tudor. 

Ward, John (Stoke-upon -Trent). 

Waring, Walter. 

Waterlow, D. S. 

White, George (Norfolk). 

White, J. D. (Dumbartonshire). 

White, Luke (York, E. R.). 

White, Patrick (Meath, North). 

Whitley, John Henry (Halifax). 

Wills, Arthur Walters. 

Wilson, Henry J. (York, W. R.). 

Wilson, W. T. (Westhoughton). 



Tellers for the ayes^ — Mr. Whiteley and Mr. J. A. Pease. 



52 



PATENTS AND DESIGNS BILL. 



NOES. 



Astbury, John Meir. 

Bowles, G. Stewart. 

Brunner, J. F. L. (Lanes., Leigh). 

Cecil, Lord John P. Joicey-. 

Cecil, Lord R. (Marylebone, E.). 

Corbett, T. L. (Down, North). 

Gordon, J. 



Harrison-Broadley, H. B. 

Marks, G. Croydon (Launeeston). 

Napier, T. B. 

Nield, Herbert. 

Radford, G. H. 

Rawlinson, Jn. Frederick Peel. 



Tellers for the noes — Mr. Cave and Mr. Staveley-Hill. 

Bill, as amended (by the standing committee), to be further con- 
sidered upon Monday next. 



ADJOURNMENT. 

Motion made, and question, ''That this House do now adjourn'^ 
(Mr. Whiteley), put, and agreed to. 
Adjourned at a quarter before 9 o'clock till Monday next. 

[Commons, August 13, 1907.] 

Considered in committee. 

Motion made and question proposed, ''That clause 1 stand part of 
the bill." 

Lord Balcarres (Lancashire, Chorley) said that he hoped the 
president of the board of trade would tell the committee something 
concerning the intentions of the Government regarding this measure. 

Mr. Lloyd-George said that he should be glad to explain 
briefly what it was proposed to do. He hoped honorable members 
would allow him to send the bill up to the House of Lords and let 
them consider the question of the incorporation of the patents and 
designs bill, as finally amended by them, in it. Of course it would be 
no use getting the consolidation bill through at all unless the patents 
bill which the house had just read a third time was incorporated in it. 
If honorable members agreed to that step, the bill would come down 
there afterwards, as amended by the House of Lords, for consideration. 

Lord Balcarres thought that the course taken with regard to this 
bill was really somewhat inconvenient. He understood that this bill, 
like all consolidation bills, ought to be referred to a select committee. 
The bill was now before a committee of the whole house, but it was 
manifestly out of the question for the House of Commons to attempt 
to consider the whole of the 80 clauses which were now before them. 
They might accept the assurance which would, no doubt, be given 
that there was not a line or a word in the bill which was different 
from or inconsistent with any existing statute. It was well known 
that during the last ten or a dozen years there had been cases in which 
consolidation bills in respect of various statutes had made consider- 
able alterations of the law, but that had invariably been put right 
in select committees of the House of Commons. The right honorable 
gentleman asked them now pro forma to discuss the 80 clauses in this 
bill, and it was obvious that at 1 o'clock in the morning they could 
not do it. As that was impossible they were to pass the 80 clauses 
and give the right honorable gentleman the third reading of the bill 
with the same dispatch as was shown in the case of the measure just 
disposed of. They were to send the bill to the House of Lords to- 



PATENTS AND DESIGNS BILL. 53 

gether with the bill which the right honorable gentleman has just 
piloted through the house and ask for a select committee to 
be set up in another place. The lords were to be asked to in- 
corporate in this consolidation bill the 30 or 40 clauses of the 
bill just passed, and, though the right honorable gentleman might 
regard it as a simple form of procedure, he submitted that really 
it was a rather cumberous method. The patents and designs 
bill was going to be amended by agreement in various respects 
in the Lords. This bill therefore would have to come down 
again after consideration; the 80 clauses would have to be reprinted 
and the whole matter would have to go to a select committee 
of the House of Commons. They could not, he submitted, pass 
the bill without letting a committee consider it in some form, 
because a measure of this kind undoubtedly required very careful 
and detailed expert examination. It was not right that a bill should 
be ])assed through Parliament in the last few hours of a session which 
really required weeks of work, and it might be found on examination 
that there were certain points in the bill which the house had just 
passed that conflicted with existing statutes. All these matters 
needed the most careful explanation, and it was in the interests of 
sound legislation that he ventured to press these points on the atten- 
tion of the right honorable gentleman. The Lords would require a 
few hours to consider the bill, and it would be very late in the session — 
almost at the very end — before it could come back to the House of 
Commons. Under the circumstances he ventured to suggest to the 
right honorable gentleman that it would be a very great advantage 
if he would consider the propriety of deferring the consolidation of the 
patent laws, eminentl}^ desirable as it was, until next session, when he 
was sure it would be treated as a purely formal and noncontroversial 
matter. 

Mr. Lloyd-George said that of course he would not be disposed to 
press a matter of this sort if the opposition were not prepared to accept 
it. He had understood, however, that in the case of this bill there 
was not only an agreement, but a desire not to oppose the bill. They 
had just given a third reading to a bill amending the patent laws, 
and he thought it was very important that the ordinary layman who 
was interested in patents should be able to read those laws for him- 
self. One thing was absolutely certain, and that was that he could 
not do it now. The consolidation bill could not be taken, however, 
unless the members of the opposition really assented, and he would be 
gald to know what their desire in regard to the measure really was. 

Lord Balcarres said it was not a question whether the opposition 
objected or not. They did not object to the consolidation of the 
patent laws, but, on the other hand, they thought it was a tiling that 
ought to be carried out. As a matter of fact they considered it not 
only advisable, but imperative. The only question which exercised 
their minds was whether that consolidation should be effected during 
the last hours of the session, or whether it would not be better to post- 
pone it till there was ample time for experts to consider the whole 
matter, the importance of which he thought no one denied. 

Mr. Lloyd-George said that if the opposition did not object to the 
bill he would suggest that they should let it go to the House of Lords 
and there would be ample time before it came back to the House of 
Commons to consider wdiether they should proceed with it or not. If 



54 PATENTS AND DESIGNS BILL. 

they sent both bills up to the House of Lords, then they would know 
the final form which would be assumed by the bill to wliich they had 
given a tliird reading that night and they would be in a better position 
to consider the question of consolidation. 

Mr. Forster (Kent, Sevenoaks) said that the opposition did not 
object to the consolidation bill, but what they wanted to know was 
whether there was an understanding that the patents and designs bill 
was to be included in the consolidation bill, and that if the latter was 
passed through the House of Commons it should be carefully reviewed 
before it actually became the law of the land. Under the bill which 
the house had just passed amending the patent laws various machin- 
ery proAdsions were set up, and he was not certain that all liis legal 
friends were satisfied that these would work smoothly. One of the 
objects in passing a consolidation bill was to save expense, and they 
would not do this unless the provisions of the bill were carefully 
considered. This they all hoped and believed would be satisfactorily 
done in another place, but the House of Commons at any rate would 
not be willing to accept the bill without further examination. All 
he wished was to have it recognized that when the bill came back 
it must of necessity be subjected to examination by the House of 
Commons. 

Mr. Claude Hay said that the president of the board of trade made 
a very proper statement when he said that the object of this bill was 
to insure that the poor inventor who was concerned in patents should 
have a cheap vade mecum of the law. The first function of the 
House of Commons was to have the first hand in framing legislation 
of this kind, but if they adopted the suggestion of the right honorable 
gentleman and took this bill in committee in the early hours of the 
morning because it was to be sent to another place, then it would be 
dealt with by the other house, with the result that the House of Com- 
mons would have lost control of the bill. He was quite sure that the 
committee would recognize the truth of that statement, because the 
House of Commons would only, under those circumstances, be able 
to deal with such amendments as the House of Lords might pass. 
Therefore it was a very serious thing to agree to the idea that the com- 
mittee stage of the bill should pass practically sub silentio, throwing 
the whole duty of considering the measure on another place. If any- 
thing went wrong in another place in respect of this bill, the burden 
would not rest on the House of Commons but on the other chamber. 
Being a member of the House of Commons he preferred that the re- 
sponsibility should rest on the House of Commons, and he thought 
they should do all they could to insure that the bill had an easy pas- 
sage through that house. He appealed to the right honorable gen- 
tleman to adjourn the consideration of the consolidation bill until 
the other chamber had had a full opportunity of considering and 
amending, with the full consent of the House of Commons, the patents 
and designs bill which had only a few moments ago passed its third 
reading. If the right honorable gentleman agreed to put back this 
measure for a time, every facility would be placed in his way of passing 
a fully matured consolidation bill through the House of Commons. 
Otherwise it would belike producing a cheap book — badly edited — and 
instead of making the law more intelligible to the inventor they would 
run the risk of making it more difficult to understand. The opposi- 
tion were taking a perfectly reasonable course in asking the right hon- 



PATENTS AND DESIGNS BILL. 55 

orable gentleman to adopt this plan, and he was convinced that the 
best results would be secured if their suggestion was adopted. 

Mr. Cave said the consolidation bill had over 80 clauses, and the 
new bill had about 50. Everybody who understood the matter knew 
that the effect of the new bill would be to necessitate alterations 
in a great many clauses of the consolidation bill. Of course, any 
amendments actually made by the Lords in the consolidation bill 
would come before the Commons for consideration, but supposing 
the Lords omitted to alter the clauses of the consolidation bill which 
ought to be altered in order to give effect to the new bill, how could 
the Commons deal with that matter ? The House of Commons could 
only deal with amendments made by the other house, and could not 
insert new amendments after the bill had been returned from the 
other house. He did not know what machinery the Lords had for 
dealing with such complicated matters, or whether they were depend- 
ent on the private efforts of members, but in any case words might 
be omitted which ought to be inserted and this house would then be 
unable to insert them. Was it not possible to postpone the committee 
stage of the consolidated bill in this house until they got the amended 
patents bill back ? Then when they got that back and knew what the 
Lords' amendments were, they might in a few days put the proper 
clauses into the consolidation bill and go on with that bill. He was 
very much in favor of consolidation, but he was against consolidation 
in a hurry. 

Mr. Gordon said that in a measure like that there might be mistakes 
which honorable members might be able to point out. He was most 
anxious to see a consolidation bill. He would like to have the law 
consolidated. It would be in the interests of everyone concerned that 
it should be ; but he certainly thought it would be better to go slowly 
and let the bill which had been passed go up to the House of Lords 
and come back first. If that could not be done, they need only wait 
till next session, when a consolidation bill could go through without 
any w^aste of time or trouble. All he wanted was that if they were 
to have a consolidation bill, the bill should be of such character that 
it would carry out the object intended, and that was to have the law 
accurately stated in a compendious form. 

Question put, and agreed to. 

Remaining clauses agreed to. 

Bill reported without amendment, read the third time, and passed. 

[August 20, 1907, second reading.] 

Order of the day for second reading read. 

Lord Granard. The bill which I have the honor to introduce to 
your lordships' notice is, I fear, one of a very complicated and com- 
plex character, and I doubt whether I shall be able to explain it 
adequately. If I fail in that respect, however, there are many noble 
lords who are lawyers and are much better able to explain its provi- 
sions. The bill has for its object the remedying of the difficulties in 
the present law as regards patents and designs. It is well to remem- 
ber in discussing this bill what the origin of patents has been. As 
your lordships are aware, the Crown originally claimed a right of 
bestowing monopolies on certain industries and subjects, and when in 
later years, I think in the time of the Stuarts, it was abolished, 



56 PATENTS AND DESIGNS BILL. 

monopolies were reserved for the purpose of bestowing them on in- 
ventors in order to encourage them to foster and create new inventions. 
That system worked well for a considerable time, but for some time 
past foreigners have been taking out patents in this country with no 
intention whatever of working them here. It may be of interest 
to your lordships to know how many patents have been taken out 
in this country and how many of those patents have been taken out 
by foreigners. During last year there were something like 14,700 
orders, and of these 6,500 were granted to foreigners. In some 
industries this significant proportion is still more apparent. I would 
venture to draw your lordships' attention to the industries of dyes 
and saccharine. In the cases of dyes I think 95 per cent of the total 
patents were taken out by foreigners, and in the case of saccharine 
the number, I think, was something like 92 per cent. A lot of for- 
eigners take out these patents without any intention whatever of 
working them in this country, and under the bill which I have the 
honor of presenting to your lordships we hope to afford a remedy for 
this. We intend to ask a foreigner who takes out a patent and there- 
fore obtains a monopoly in this country to give us adequate reasons 
why he does not work the patent in this country, and, if he is unable 
to do so, we shall either insist upon his granting a compulsory license 
or in some way revoke his patent. There has been a certain amount 
of criticism on this clause, and it has been directed so far as I can 
make out on two points. One line of argument is that it savors of 
protection. I do not know how your lordships can agree with this 
argument, for it seems to me to be strongly in favor of free trade. 
At the present moment the man who works a patent in this country 
is certainly at a great disadvantage, for foreign patentees take out 
patents in this country with no intention of working them here. 
Surely it is fair to ask a foreigner who obtains a monopoly to give 
some adequate return for the monopoly the State grants him, and I 
do not think it is unfair in any way to ask him what we suggest in this 
bill. As your lordships are aware, in the bill which I think the board 
of trade brought in in 1902, the question of compulsory licenses was 
considered. It was hoped that by that bill compulsory licenses 
would be taken out, but, as a matter of fact, the result has not been 
at all satisfactory. The mode of procedure was very expensive. The 
appeal was to the privy council, and I understand that that is a tribunal 
very expensive to plead before. No poor inventor of any sort or 
kind would be able to pay the amount necessary. Under the present 
bill, we propose if possible to make this somewhat cheaper. The 
appeal will be to a single judge, and that single judge will be ap- 
pointed by the noble lord who sits on the Woolsack, and his decision 
will be final. 

Another section which has been to a certain extent talked about 
is section 24. Its object is to prevent unfair conditions and restric- 
tions being attached to the acquisition of patented articles. There 
has been a certain amount of ground for complaint in that respect, 
and it has especially been brought before us very forcibly in regard to 
the boot trade. They are bound in that trade to enter into agree- 
ments which they are forced to keep under which they may only 
use one particular machine, although many better machines may come 
out in the future. They are tied down to these original machines 
during the time their contract exists, and they are not allowed to use 



PATENTS AND DESIGNS BILL. 57 

any other of any sort or kind. There are a great many other minor 
improvements in the law of patents. There is, I have pointed out, 
the simphfication of the patent laws, the cheapening of procethire, 
and the securing of a diminuition in the number of invalid orders. 
There is a provision for the revocation of patents and another provi- 
sion that a patent is not to be invalid by reason of an invention having 
been published which was not within the knowledge of the man who 
invented the patent. There are also provisions made as regards patent 
agents. There are, as your lordships' doubtless know, a certain 
number of what are known as registered patent agents, over whom 
the board of trade have absolute control, and the comptroller can 
refuse to deal with these people. As regards vmrecognized patent 
agents, he has no power whatever. Under the bill at present before 
3^our lordships this is intended to be remedied, and the comptroller 
will be able to refuse to recognize unregistered patent agents who have 
been guilty of disgraceful professional conduct, and also to refuse 
to have anything to do with foreigners who have not a place of business 
in this country. 

The latter part of the bill deals completely with designs, and the. 
provisions of this part of the bill have been approved by the whole 
of the chambers of commerce. I do not know that there is very much 
more that it is necessary for me to say. Perhaps I might say that 
this bill has been welcomed in the House of Commons almost uni- 
versally. The colleague of the noble lord opposite, Mr. Bonar Law, 
who was at the board of trade with him, made, if I remember right, 
one great complaint against the Government. He said that while all 
his colleagues had ample opportunity of criticizing measures of the 
Government, he was in the unfortunate position of always having 
to agree with the measures brought forward by my right honorable 
friend the president of the board of trade. I only hope that the 
noble marquis, whose colleague Mr. Bonar Law^ was at the board of 
trade, may take the same view and give this bill a favorable considera- 
tion on second reading. 

Moved, ''That the bill be now read 2^" 

The Marquis of Salisbury. I am afraid I owe your lordships a 
very humble apology for once more presenting myself to address you. 

I do so upon a very much less exciting topic, but one which is not 
less important in its character. I can onlv promise I will be very 
short. The nobis earl who has explained this bill has expressed the 
hope that the amicable relations which subsist between the repre- 
sentatives of the board of trade and the ex-representatives of the 
board of trade in the House of Commons will be found to be true in 
this house also. I do not think he has reason to complain of my atti- 
tude during the last two years in respect of board of trade business, 
and, as regards this bill, there is no reason why there should be any great 
difference of opinion between us. On its principle and on most of 
its details I think it will be found that no great difference of opinion 
exists in your lordships' house, but I am bound to say that I think 
the way in which this bill has been presented to the house does call 
for comment, and, indeed, for serious complaint. I ask your lord- 
ships, Is it a proper thing to present for the first time to the House of 
Lords a bill of this enormous importance upon the 20th of August at 

II o'clock at night? This bill with all its merits, is a bill of detail, 
and any matters of dispute in it are all matters of detail which under 



58 PATENTS AND DESIGNS BILL. 

happier circumstances would be far better discussed in your lord- 
sliips' house than anywhere else, because in your lordships' house are 
contained men of great experience, both in industrial matters and in 
matters of law, men whose equal, with al] respect to the House of 
Commons, are not to be found in that branch of the legislature. I 
think that it is almost wanton, if I may use such a phrase, of His 
Majesty's Government to use the House of Lords so badly in respect 
of this most important bill. There is no really no reason in the world 
why the bill should not have been brought before us at an earlier 
period of the session. Why was it not introduced in your lordships' 
house ? That would have been an easy and proper method. I am 
sure if it had been introduced in your lordships' house in the earlier 
part of the session, it would have been sent to a select committee 
which would have thrashed out its details, brought to bear upon it 
first-class knowledge, and turned out a first-class bill. But as it is^ 
what are we to do ? I look around. One or two legal luminaries are 
still here, but where, for example, is the Lord Chief Justice ? He is 
known to be a great authority on patent law. He is not here. 
Where is Lord Coleridge ? He is not here. He was always introduc- 
ing a patent bill when I was in the House of Commons. The same 
thing may be said of those who are engaged in industry. Where is 
Lord Avebury ? He is on the associated chambers of commerce and 
on the board of trade advisory committee. He is not to be found. 
Discussion in your lordships' house under these circumstances is 
nothing less than a farce, and is not deserving of the name of a real 
discussion by a legislative assembly. I have made my protest, and I 
earnestly hope the members of the Government who sit in your lord- 
ships' house, and who, I am sure, can not approve of such treatment, 
will exercise their influence on the Government next year and see that 
bills of this kind, which are preeminently those which ought to be 
introduced here, are introduced here at an earlier part of the session. 
I do not propose on the present occasion to say much as regards the 
bill itself. There are considerable difficulties which I think ought 
to be explained when we get into committee. I will only enumerate 
them more for the purpose of giving notice of the kind of thing which 
ought to be discussed in committee than with the view of dwelling 
upon them. There is, for example, the question under clause 3, which 
makes it incumbent under certain circumstances upon an inventor of 
chemicals who seeks a patent to produce samples of his work. It is 
alleged that that will press very hardly upon the poor inventor who 
very often has not access to the machinery to produce a sample. 
There is a question in clause 4 as to cognate orders — a most difficult 
and intricate matter. It is alleged that great confusion may arise in 
respect of the fact that your cognate patent is antedated to the same 
date as the original patent. Then there is the more important clause, 
clause 7. The noble earl knows that that is a question which excites 
a good deal of feeling. Under clause 7 the comptroller, in the first 
instance, at any rate, has power to refuse the patent altogether if he 
thinks it has been completely anticipated. Hitherto, if a man has 
taken a patent out under those circumstances, he has taken it out at 
his own risk, and no one has had the right to stop him altogether. 
When the proper time comes I shall be prepared, I think, to explain 
to your lordships how it is that such a change in the law may act with 
considerable hardship upon inventors, but I will content myself for 



PATENTS AND DESIGNS BILL. 50 

the moment with saying that a very important document was, I 
think, prepared and presented to the board of trade, signed by an 
enormous number of persons of great importance in the world of 
invention, inckiding a most eminent member of your lordships' house — 
Lord Kelvin — which protested against the conditions of clause 7. 
Then there is the question of the single judge. I quite agree for my 
own part that there is a great deal to be said for referring these ques- 
tions to a single judge, but there seems to be a necessity that there 
should be some means when we reach important and intricate matters 
of patent law, to refer the decision to a higher court of appeal. I 
shall be very glad as regards the other clauses of the bill, when we 
come to them, if the noble earl is able to explain upon what prin- 
ciple the words "exclusively or mainly manufactured in this country" 
will be interpreted. I am not opposed to the principle of this clause, 
but I think some of the words are so vague that they will give rise 
to very expensive litigation. I should also like to ask in connection 
with that clause what are the positions of foreign treaties which are 
referred to in the latter part — whether in foreign treaties, w^hich, of 
course, are very much complicated by the existence of the most- 
favored-nation clause, it will be possible for this clause to operate at / 
all. I may just say one word as to compulsory licenses, and it shall 
only be one word. The noble lord said that the section in the act 
of 1902 had failed. He was quite right in that observation, but I 
would call to his notice the fact that it failed because of the ex- 
pense and the expense alone. It does not, however, follow that 
because the clause in the act of 1902 failed, the principle of com- 
pulsory licenses is a bad principle. I am glad, therefore, to find that 
the principle still appears in the bill, although the tribunal is no longer 
the privy council but a single judge. 

There only remains one word to be said in regard to clause 24. 
That clause is a very novel clause. I do not deny that the argument 
the noble earl used just now has a great deal in it. I am not at all 
prepared to say that the Nation has not the right, in return for the 
monopoly which it grants, to impose certain conditions upon the use 
of that monopoly. That appears to me perfectly defensible in theory, 
and, indeed, it may be defensible in practice, too. But I think we 
ought, before we part with that clause in committee, to have some 
account of the reasons which have led the Government to put it in 
the bill. Until I have heard those reasons I should like to reserve my 
opinion as to whether the clause deserves the complete support of 
your lordships' house. It will be seen from the observations I have 
ventured to make that none of the objections to' which I have called 
attention are objections of principle. They are all matters of detail, 
and if I have detained your lordships for a few moments, it is for the 
purpose of giving notice to my noble friend of those matters which 
seem likely to arise when we get into committee and not for the pur- 
pose of stopping the passage of the bill. 

The Lord Privy Seal (The Marquis of Ripon). I must admit 
that the noble lord has some cause of complaint. All I can say is 
that the bill was very carefully considered in the other house. I 
believe it was six weeks in grand committee. That is one of the 
reasons why it comes up to us so late. I have alw^ays been very pes- 
simistic, whether I sat on this side or on the other side of the house, 
with reference to the dates on which bills come up to this house. 



60 PATENTS AND DESIGNS RILL. 

If the bill, however, be late here, there is no doubt that the noble 
marquis thoroughly understands it, and that he will be prepared 
when we get into committee to make any observations he desires. 
I am quite sure my noble friend behind me will be equally ready to 
make a reply. The bill is a very important one, and it does deserve 
good consideration. I regret that a bill of this kind should have 
come up at this period of the session, but it is not the first occasion 
on which things of this sort have happened, and I am afraid it is not 
likelv to be the last. 

Viscount St. Aldwyn. It is very difficult to say much after the 
generous apology the noble marquis has made, but, as a past presi- 
dent of the board of trade, I would venture to sav this much in addi- 
tion to what he has said as to whether a way might have been found 
out of the difficulty. This is not a party measure, and it is a bill 
the details of which can really be discussed only by experts such as 
lawyers or gentlemen concerned in some industrial occupation. 
It is a bill which, of all others, I should have thought, speaking with 
some little officieJ acquaintance of the subject, might have been 
introduced in your lordships' house earlier in the session. I hope 
the noble marquis opposite will, at any rate, use his influence next 
year to see that something of the kind will be done as regards meas- 
ures of a similar character to the present bill. 

On question, motion agreed to. 

Bill read 2^, and committed to a committee of the whole house on 
Friday next. 

[Lords, August 23, 1907.] 

House in committee (according to order). 

Clauses 1 to 6 agreed to. 

Clause 7 : 

The Marquis of Salisbury, in moving to omit clause 7, said the 
proposal in this clause was a perfectly new one, which had never yet 
found its way into patent legislation. Under it the comptroller, 
who, though an admirable official of the board of trade, was not a 
judicial officer in any sense of the word, had a right to stop abso- 
lutely an application for a patent if he thought it had been wholly 
anticipated. As a matter of fact, there was no more difficult issue to 
try as whether a patent had been wholly anticipated. The experience 
of the courts showed in case after case and time after time that patents 
which had the appearance of having been wholly anticipated, so far 
from having been in fact anticipated had been sustained by the high- 
est courts, and had been of the greatest use to the community and to 
the industries of the country. At a more congenial period he could 
have gone into that subject at great length; but he might mention one 
case in order to illustrate his meaning to their lordships. A patent 
was applied for which had for its object the disinfecting of clothes 
by means of superheated steam. When the specification was looked 
at that patent appeared to have been completely and absolutely 
anticipated by a former patent. The one which it was alleged antici- 
pated it was a complete and disastrous failure, for the reason that 
when the pressure of steam was put on the machine it burst,, and 
therefore it did not succeed. As far as the description of the patent 
was concerned, the new patent was precisely the same as the old, 
only in this case when the pressure of steam was put on it did not 



PATENTS AND DESIGNS BILL. 61 

burst, and the result was just the difference between compkHe failure 
and complete success. It would have been exceedingly difficult 
to have told that beforehand upon the terms of the specification; 
but when the case came to be tried by the superior courts after the 
new patent had been in use for some time, the patent was sustained. 
He only mentioned that in order to illustrate that the issue of whether 
a patent had been anticipated or not was a most difficult one, and 
was not one which ought to be intrusted to the comptroller of his 
own motion to interpret and decide upon. This clause had attracted 
a great deal of attention. It was not in the original bill of His 
Majesty's Government, but it was put in in grand committee of the 
House of Commons. A letter had been written to the Times pro- 
testing in the warmest way against it, and signed by a large number 
of gentlemen, including Lord Kelvin, Sir Douglas Fox, Prof. Silvanus 
Thompson, and many other eminent men who had great experience 
of inventions and patents. And, lastly, the London Chamber of 
Commerce had communicated with him through their representative, 
begging him to use his best endeavors to induce their lordships to 
prevent the passing of this clause. He need not remind their lord- 
ships that the London Chamber of Commerce was a very important 
body, and that they had a special connection with patents, and upon 
the strength of their suggestion he had ventured to place this amend- 
ment before their lordships. No ultimate injustice would be done, 
even if the clause were struck out, because the granting of the patent 
afterwards could be opposed, if it was desired to oppose it, on behalf 
of any aggrieved party. That was not touched by this clause, nor 
was the right to have a patent revoked hereafter if the aggrieved 
party desired to have it revoked. The object of the amendment was 
only to prevent the comptroller taking the tremendous responsibility 
of stopping on his own motion the granting of a patent. 
Amendment moved — 

To leave out clause 7. — (The Marquis of Salisbury.) 

The Lord Chancellor. I feel confident that if the noble marquis 
had been in the habit of considering patents and specifications, he 
would not have lent his ear to those who oppose this clause. Patents 
are monopolies granted by the State in order to benefit those who are 
real inventors; but there is a class of patents taken out which are show 
patents, and to which I refrain from attaching a still more serious 
epithet. They are patents which have been partly anticipated; 
they are not new at all, but previous specifications have, in the words 
of this clause, "wholly and specifically" claimed them. But there 
are poor people who can not aTord to fight those who have got a 
patent; and the consequence is that by means of these bogus patents 
those people who obtain them frighten those who are poor and who 
can not contest with them in courts of law, and thereby they require 
them to take out licenses and make some sort of payment rather than 
have a litigation. That is the plain fact. One of the purposes of 
this bill is to put an end to practices which I will not stigmatize fur- 
ther than I have already described them — and I think that is a most 
meritorious object. This is what the clause says: 

Provided, That the comptroller, if satisfied that the invention claimed has been 
wholly claimed or described in any specification to which the investigation has ex- 
tended may, in lieu of requiring references to be made in the applicant's specification 
as aforesaid, refuse to grant a patent. 



62 PATENTS AND DESIGNS BILL. 

The noble marquis is quite mistaken if he thinks there is much 
difficulty about that. 

The Marquis of Salisbury. I think there is. 

The Lord Chancellor. I have had a great deal to do with speci- 
fications, and I do not think there is any difficulty in deciding whether 
there is ground for saying that an invention has been previously 
claimed. The whole thing is set out in print; you can see it at any 
time. But let me tell this to the noble marquis: The comptroller, 
himself a skilled offixial, has had the power of refusing patents since 
1883 in cases where there has been opposition, and there is an appeal 
to the law officer. It is not the comptroller alone, but there is an 
appeal to the law officer. I venture to think that nothing can be 
more desirable than to give an opportunity, in such obvious cases 
as these, of preventing what is really altogether an abuse of the sys- 
tem of patents for the sake of profit, and which has been a source of 
real complaint on the part of the trading classes. 

The Marquis of Salisbury said that, having been a law officer, 
no doubt the noble and learned lord knew as well as he did that in 
any case where a patent was alleged to have been anticipated, and 
the comptroller thought so, the patentee had to put on his own speci- 
fication, in black and white, the other patents which were said to 
anticipate his, so as to give such notice to the public as to enable them 
to resist an unfair patent. That was under the act of 1892. The 
noble and learned lord had also forgotten to remind their lordships 
that unless he was very much mistaken — he spoke under correction — 
in the report of the royal commission on this subject, on which the 
Lord Chief Justice sat, as well as other persons of great eminence on 
these subjects — Lord Justice Fletcher Moulton amongst others — 
it was definitely recommended that this power should not be given; 
and there was a specific recommendation of that committee upon 
which the act of 1892 was founded. The house had not had a real 
opportunity of dealing with this bill. He had cut down his observa- 
tions to a minimum; but the bill was presented to their lordships' 
house on August 22 with these new principles introduced. It ought 
to have come to their lordships earlier in the session, and to have been 
sent to a select committee. That would have been the proper pro- 
ceeding, and he thought their lordships were entitled to insist that a 
totally new clause should not be put into an act of Parfiament, to the 

Erejudice of every great interests and in the teeth of a protest signed 
y such influential persons as he had mentioned, and by the cham- 
ber of commerce, without some better opportunity for consideration 
than had been afforded. If His Majesty's Government had treated 
their lordship's house properly, and had sent the bill in in proper 
time, it would then have been sent to a select committee; and not 
only would he not then have resisted it, but he would not even have 
dared to raise his voice, because then there would have been the 
Lord Chief Justice, Lord Avebury, Lord Collins, and others who knew 
very much more about the matter than he did, who at present were 
away on their holidays and therefore not able to take part in this 
discussion. He thought His Majesty's Government ought to give 
way. 

The Lord Chancellor. I hope I have not said anything that can 
legitimately cause pain to the noble marquis. 
The Marquis of Salisbury. Not at all. 



PATENTS AND DESIGNS BILL. 63 

The Lord Chancellor. The noble marquis has said that this bill 
ought to have come before your lordships' house before. We all wish 
it had; and we all know the causes why it has not. I have had 
occasion to say before that until you alter the causes you will never 
be quite certain of being able to prevent these things happening. 
In regard to what the noble marquis has said about the recommen- 
dation of the committee, that is quite true. They thought the prac- 
tice would be stopped by an additional sealing fee being put on. 
It has turned out, however, that the additional sealing fee has not 
had the effect of stopping these sham patents. In regard to the 
point about notice of previous patents, all that the noble marquis 
says is perfectly true; but that has not prevented the abuses — 
because the point is that you have got a patent and, whatever the 
patent is, you prevent or terrorize poor people from using the old 
invention unless they are prepared to come to terms with you. The 
thing is wrong on the face of it ; and no one has ever denied that the 
practice is carried on. I am quite satisfied that this is a fair thing 
to do, and I hope the noble marquis will not press his amendment. 

On question, amendment negatived. 

Clause 7 agreed to. 

Clauses 8 and 9 agreed to. 

Clause 10: 

The Earl of Granard. There are several amendments standing in 
my name on this clause, but they are simply drafting amendments 
rendered necessary in consequence of some inadvertence on the report 
stage of the bill. 

The Marquis of Salisbury. Why does the noble earl strike out 
'' wholly and specifically" in line 31 ? 

The Earl of Granard. In answer to the noble marquis, if "wholly 
and specifically" were allowed to remain in the clause, instead of 
widening its operation it would curtail it. I can give an example. 
If these words were allowed to remain it would not be possible for 
anybody to object to any part of an invention being taken. 

Drafting amendments agreed to. 

Clause 10, as amended, agreed to. 

Clauses 11 to 14 agreed to. 

Clause 15: 

The Earl of Granard. As the clause stands at present, it will not 
come into operation until the expiration of a year from the com- 
mencement of this act; that is to say, not until January 1, 1909. 
The intention of this amendment is that it should come into operation 
at the end of 12 months after the passing of the bill. I may 
mention that the word '^ commencement" was accepted inadvertently 
in the House of Commons on the report stage. 

Amendment moved — 

In page 6, line 23,' to leave out from the word '' patent" to the word "of," in line 
26, and insert the words "and not less than one year after the passing." — (The Earl of 
Granard.) 

The Marquis of Salisbury said that there was a difference of 
opinion between the noble earl and himself as to the opening words 
of this amendment as it stood, whether clause 15 should apply to the 
question of patents granted before the commencement of this act. 
He did not feel that their lordships would care that he should raise 
that point at that hour of the night in a house not very numerously 



64 • PATENTS AND DESIGNS BILL. 

attended. It was a very important point, and, personally, he was 
very much astonished that His Majesty's Government had lent 
themselves to limiting the rights of the persons who had got their 
patents before the passage of this act. It was a very strong measure; 
but he would not attempt to contest it at the present moment. 

On question, amendment agreed to. 

Drafting amendments agreed to. 

Clause 15, as amended, agreed to. 

Clauses 16 to 22 agreed to. 

Clause 23 : 

The Earl of Granard. I beg to move to leave out the words ''did 
not arise from any misconduct on the part of the patentee," and to 
insert the words 'Hhat no undue delay has occurred in making the 
application." We are of opinion that it is very improbable that 
omission would arise from any misconduct on the part of the patentee, 
and that what really should disqualify the application from obtaining 
restoration of the patent is undue delay in applying for such resto- 
ration. 

Amendment moved — 

In page 10, lines 4 and 5, to leave out the words "did not arise from any misconduct 
on the part of the patentee," and to insert" the words "that no undue delay has 
occurred in making the application." — (The Earl of Granard.) 

The Marquis of Salisbury. Who judges? The comptroller? 

The Earl of Granard. The comptroller; yes. 

On question, amendment agreed to. 

Clause 23, as amended, agreed to. 

Clause 24 : 

Drafting amendment agreed to. 

The Lord Chancellor. The next amendment is one that I move 
and it arises in this way. There is a provision that certain conditions 
to the sale of patented articles shall not be valid. I will tell your 
lordships exactly the sort of thing that happens. People who live 
abroad, and take out patents in this country, do not work them in 
this country, but manufacture the patented articles in, say, America 
or anywhere they please, and then they sell the right to use the patent 
here, and they affix conditions — for instance, conditions that all the 
machinery for the purpose of making the patented articles shall be 
bought from them in America, and all sorts of other conditions of an 
oppressive kind. Thereby they use the patent, not merely for the 
legitimate protection of themselves, but for the purpose of either 
preventing people in the United Kingdom from making the patented 
articles, or of attaching all kinds of irrelevant and oppressive condi- 
tions to the permission to make them. That is thought to be unfair; 
and the consequence is that certain conditions are proscribed here, 
as, for example, to require the purchaser or the licensee to acquire 
from the seller or the licensor any article or articles not protected 
by the patent. I have just given an illustration of that with regard 
to buying machinery. Still it is necessary to keep as much freedom 
as is consistent with preventing abuse of the patent; and accordingly 
we propose, in accordance with a sort of undertaking given in the 
House of Commons, that this subsection shall not apply if the seller, 
lessor, or licensor proves that at the time the contract was entered 
into the purchaser, lessee, or licensee had the option of purchasing 
the article or obtaining a lease or license on reasonable terms without 



PATENTS AND DESIGNS BJU^. 65 

such conditions, and also that the contract entitles him to relieve 
himself of the liability to observe any such condition on giving notice 
and paying compensation. That seems to be the best and fairest 
way of enabling reasonable conditions to be made, or enabling prac- 
tically any conditions to be made, provided there is a free opportunity 
for each party to contract. It is a technical and somewhat difficult 
matter — ^but the object is to prevent the imposition of these abso- 
lutely preposterous conditions by persons who sell from abroad — 
or indeed in this country also — patented articles. 
Amendment moved — 

In line 30, after the word "policy," to insert the words "Provided, That this subsec- 
tion shall not apply if (i) the seller, lessor, or licensor proves that at the time the con-- 
tract was entered into the purchaser, lessee, or licensee had the option of purchasing 
the article or obtaining a lease or license on reasonable terms, without such conditions 
as aforesaid; and (ii) the contract entitles the purchaser, lessee, or licensee to relieve 
himself of his liability to observe any such condition on giving the other party three 
months' notice in writing and on payment in compensation for such relief in the case 
of a purchase, of such reasonable sum, or in the case of a lease or license of such rea- 
sonable rent on royalty for the residue of the term of the contract, as may be fixed 
by an arbitrator appointed by the board of trade." — (The Lord Chancellor.) 

The Marquis of Salisbury said he certainly did not rise in any way 
to contest the principle of this clause, but he thought the clause as it 
stood in the bill went much too far. However, the amendment pro- 
posed by His Majesty's Government was certainly a considerable 
concession. He wanted to be as brief as possible, but there were two 
points to which he would like to call the noble and learned lord's 
attention. In the first place, there was the compensation mentioned 
in the second subsection. That compensation was said to be '^such 
reasonable sum or such reasonable rent or royalty" — so that the 
word '^ reasonable" was attached to ''compensation." If the noble 
and learned lord would look at the second subsection, the correspond- 
ing compensation had no such word as '^ reasonable" sum attached to 
it. Then, in the case of contracts made before the passing of this 
act where the terms of the contract could be broken in return for com- 
pensation, the word appeared alone without the word ''reasonable." 
Here, again, he considerably felt at a loss in discussing the matter with 
the noble and learned lord, but he suggested to him that anybody 
seeing the section when it passed into an act of Parliament would have 
their attention at once drawn to the point that the ''compensation" 
mentioned in the first subsection was differently worded from the 
"compensation" mentioned in the second and third subsections. 

The Lord Chancellor. I do not mind leaving out the word 
"reasonable"; I think that will cover it. 

The Marquis of Salisbury was obliged to the noble and learned 
lord, but were they to understand that the word "compensation" 
in this connection meant the full amount which the person who 
received the compensation had lost by the operation of the clause ? 
It Avas not, he presumed, compensation such as might be thought 
sufficient by the official of the board of trade whose business it was 
to make the act work but not to care so very much about justice 
to the parties. He did not mean to say that there were such persons 
at the board of trade, but it was a conceivable case. The compensa- 
tion he wanted was full compensation corresponding to the loss to the 
individual whose contract was broken. Would he get the full value ? 
He had a contract; the contract was broken; he lost by it; would the 

40296—12 5 



66 PATEI^TS AND DESIGNS BILL. 

compensation correspond, so far as human ingenuity could make it^ 
to his loss ? 

The Lord Chancellor. I will omit the word '^reasonable" in 
both places. I do not think it either adds to or detracts from the 
value of the clause. With regard to the question which the noble 
marquis put, he touched upon a very difficult subject, the measure 
of damages. What I think would be given would be what the arbi- 
trator thinks, under the circumstances, it is fair to give, remembering 
what it is given for, namely, a man reheving himself of an obligation; 
he would have to compensate the other person whatever is fair. 

The Marquis of Salisbury. The same sort of damages as a jury 
would give ? 

The Lord Chancellor. Very much the same thing. In fixing 
damages, in nearly all cases you must consider what is reasonable, 
right, and fair, and in this case you would have to compensate this 
person for the alteration in his position in consequence of notice 
having been given. That is the way it would be put to himself by 
the arbitrator; and I think it would be very difficult to go nearer to 
it. There is nothing that I know, either in the wording or the inten- 
tion, to make any unfair limit. 

The Marquis of Salisbury. I think I must be satisfied with 
that. I should not have asked the noble and learned lord the ques- 
tion but that there had been an observation by one of his colleagues 
in another place which led people to doubt what ''full compensation" 
was intended to cover. 

The Lord Chancellor. Those words were not before him. 

The Marquis of Salisbury said he could absolutely rely on what the 
noble and learned lord had told him. There was just one other ques- 
tion he wanted to put with reference to the word "and.'^ This was 
a much more important question. Should not the word be "or"? 
He thought they were entitled to some consideration from His 
Majesty's Government. After all, this was the case of two men 
wishing to make a contract; the two persons were perfectly free 
agents. It was not like the oppression by a rich man of a poor man, 
but it was a case of dealings between two business men, each of whom 
was perfectly capable of making a bargain. It was said that not- 
withstanding that hard terms were inserted. They could see that 
hard terms might be inserted in such a contract, and they accepted 
the principle of the Government clause, but if it could be shown that 
there was a reasonable alternative given to these hard terms, then 
this restrictive clause should not apply. What were reasonable 
terms ? Surely, if the seller could prove that the man with whom 
he was dealing could, in the alternative of those terms, have bought 
in the open market freely, that ought to be quite sufficient; or, if he 
could, on the other hand, show that he had offered the purchaser an 
arrangement which did not involve these restrictive terms, that ought 
to be perfectly sufficient. But why couple them both together? 
Why make the double condition? Surely, it w^as quite sufficient 
in the case of business men, who were perfectly able to make a bar- 
gain between themselves, to go as far as he had described, and to 
allow either of the alternatives. He begged to move, as an amend- 
ment to the amendment, to leave out the word "and" and insert the 
word "or." 



PATENTS AND DESIGNS BILL. 67 

Amendment moved to the proposed amendment — 

To leave out the word "and," at the end of subsection (i), and to insert the word 
"or." — (The Marquis of Salisbury.) 

The Lord Chancellor. I think if the noble marquis will just 
look at the clause he will see that he can not maintain that. He 
begins by admitting that there may be cases — in fact, everj^body 
knows there are numerous cases — in which these oppressive and 
imfair conditions are imposed upon persons who are not offered a 
fair alternative. If that is the case, would it be sufficient to say that 
that still may be imposed upon a person who is not offered a fair 
alternative if he is unable to get out of it by paying compensation? 
That is the effect of the noble lord's amendment, because either the 
first or the second limb of my proposed words would suffice to exclude 
the effect of the section. It is necessary, to my mind, in order to 
prevent the subsection applying, that there should be, in the first 
place, proof that the man could have got a license on fair terms and, 
secondly, might have got out of it upon giving notice and paying com- 
pensation; and, if you say that he may still be oppressed if he got out 
of it by paying compensation, you put him to this alternative — 
that he is either to pay compensation in any event, or to pay com- 
pensation for getting out of what is unfair. That can not be right. 

On question, original amendment agreed to, with the omission of the 
word "reasonable'' in lines 3 and 4. 

Drafting amendment agreed to. 

Lord Balfour of Burleigh, who had an amendment in page 11, line 
23, after the word "from" to insert the words "buying or," said that 
he did not desire to move the amendment, because an amendment 
inserted by the noble lord in charge of the bill met his point. 

Drafting amendments agreed to. 

Clause 24, as amended, agreed to. 

Clauses 25 and 26 agreed to. 

Clause 27, with drafting amendment, agreed to. 

Clause 28: 

The Marquis of Salisbury, in moving to insert a proviso giving 
leave to appeal under certain conditions, said that he had been in 
communication with the lord chancellor upon this point, but, unfor- 
tunately, owing to the demands upon his lordship's time, they were 
not able to bring their conversation to a conclusion. He had there- 
fore put the amendment upon the paper, but he would not press it if 
the noble lord did not wish him to do so. He thought, considering 
the enormous importance of the issues involved, and the very large 
sums of money in question, there ought to be some possibility of bring- 
ing these cases to the superior courts if the court of appeal should 
think it right. He knew that in all cases of revocation there was an 
appeal granted now, but there were cases which did not involve 
revocation but yet were very important, as, for example, the case 
of a petition under clause 16 with regard to a compulsory license. 
That might be a decision of very great importance. He would say 
nothing more, except that if the noble and learned lord was willing 
to accept his amendment he would take it on any terms he liked. 
It was a matter much more for the noble and learned lord than 
for himself. 



68 PATENTS AND DESIGNS BILL. 

Amendnieiits moved — 

In page 12, line 35, after the word "and" to insert the words "save as hereinafter 
provided." 

In line 39, after the word "opposed" to insert the words "unless the court of ap- 
peal shall give leave to appeal upon such condition as to costs or otherwise as they shall 
think just: Provided, That in considering any application for leave to appeal the court 
of appeal shall have regard to the interests involved in the proceedings and the finan- 
cial position of the parties thereto." — (The Marquis of Salisbury.) 

The Lord Chancellor. This is one of the sort of points on which 
I wish, so to speak, both ways. In appeals, you have always got to 
consider, in the first place, that it is very hard if the decision of one 
judge produces unfairness or injustice. On the other hand, you 
have to remember that the rich man can kill the poor man by constant 
appeal. It is extremely difficult to draw the line between the two. 
I am quite certain that the noble marquis and I have exactly the 
same purpose in view. Will he just look and see what things are un- 
appealable — I mean unappealable to the court ? In the first place, 
decisions of the comptroller under clause 15 — that is, for the revoca- 
tion of patents outside the United Kingdom — when a man takes out 
a patent outside England and never works it in England, but merely 
uses it to prevent industry in England. There is no appeal if it is 
proved that the patent ought to be revoked for not being worked 
outside the United Kingdom; and I think that is a fair issue enough 
to leave to the one judge. 

The Marquis of Salisbury thought there was an appeal under that, 
because it involved revocation. 

The Lord Chancellor. The only appeals in which decisions 
would be final would be, in the first place, decisions under the comp- 
troller. They would not be appealable. The next are decisions 
under clause 16, where the judge gives a compulsory license on the 
ground that the patentee takes out his patent in this country and 
works it wholly abroad, and will not allow anybody to work it in 
England at all — which is a usual rule. We give the judge power to 
say: "You shall allow it to be worked in this country; it is an English 
patent, and we will not allow you to use it for the purpose of pre- 
venting British industry." There is no appeal against that, and I 
do not see that there is anything very hard in such a case. The next 
is the decision of the juage under clause 17. Clause 17 i? a clause 
for merely extending the term of a patent from 14 years to some- 
thing further. Theie is no appeal against that, aiid there is no apr 
peal against the decision of the comptroller (and this is the last, I 
am glad to say) under clause 23; that is, in regard to lapsed patents 
being restored. After all, they are not really fighting points as to 
whether there has been infringement of the patent. It is only those 
four points which are unappealable. I will not say we are abso- 
lutely right, but it seems to me not unreasonable to say finis litem 
at an early stage. 

The Marquis of Salisbury thought that the noble and learned 
lord — if he might say so with respect — put the point not quite fairly. 
It was quite true that it was in the eyes of a true-born Britisher an 
outrage that a patent could not be worked in England, but that was 
not the appeal which would go to the appeal court. Somebody would 
have to decide what was the interpretation of being ''wholly or 
mainly manufactured in the United Kingdom." That must be a 



PATENTS AND DESIGNS BILL. 69 

matter of the most immense intricacy — indeed, lie could not attach 
any meaning at all to the word "mainly," but then he was not a 
lawyer. He could not conceive how it would be interpreted. It 
might be said that '^mainly" meant that of all the articles in (|uestion 
the majority were made outside the United Kingdom. If that was 
the meaning of ''mainly/' then the clause would work a great hard- 
ship; but if it meant that of the supply in England the larger num- 
ber had been made abroad, that would not be so bad. But it seemed 
to him a word of the vaguest possible kind, and likely to lead to any 
amount of litigation. Taking clause 16, he found that somebody 
would have to interpret what the words "manufactured to aii ade- 
quate extent " meant. Was not that a wonderful word for an act of 
Parliament? "WTio in the world knew what an "adequate extent " 
could be? And, again, there was the expression "suj:>ply on 
reasonable terms." He did not want to insist, but he did not 
think the noble and learned lord ought to import any prejudice from 
the kind of subject which these clauses dealt with. No doubt they 
were designed to prevent injustice to British subjects, but that was 
no reason why they should put in an act of Parliament very vague 
terms and then not allow any appeal to a proper tribunal to say what 
they meant. 

The Lord Chancellor. I do not deny that there may be cases of 
hardship arising upon this or upon an}^ other clause in any other act 
of Parliament. It is a choice of evils — whether you will protract 
litigation or whether you will risk error now and then. I think we 
must draw the line somewhere. 

The Marquis of Salisbury. I do not press it. 

Amendment, by leave, withdrawn. 

Clauses 31 to 33 agreed to. 

Clause 34, with consequential amendment, agreed to. 

Clauses 35 to 43 agreed to. 

Clause 44, with consequential amendment, agreed to. 

Clause 45 agreed to. 

Clause 46, with drafting amendment, agreed to. 

Clauses 47 to 49 agreed to. 

After clause 49 : 

The Lord Chancellor. I move to insert a new clause, which is 
only for the purpose of applying to Scotland the expression "rules 
of the supreme court." It appears that my countrymen in Scot- 
land have not been as diligent as they are reputed to be, and your 
lordships may be able to make them work, I hope, by putting in that 
this refers to Scotland. 

Amendment moved — 

To insert the following new clause: "The expression 'rules of the supreme court' 
shall in this act (except in sec. 28) as applying to Scotland mean act of sederunt; and 
notwithstanding anything contained in the patents, designs, and trade-marks acts, 
1883 to 1902, or in this act, the expression 'court' in sections 16 and 17 of this act 
shall, in reference to proceedings in Scotland thereunder, mean any lord ordinary of 
the court of session. "^ — (The Lord Chancellor.) 

Lord Balfour of Burleigh said the amendment sounded quite 
reasonable, but they would look at it when it was in print. 

The Lord Chancellor. Before I put this clause the noble lord has 
handed in an amendment to clause 48, relating to the Isle of Man. 
I will put that first. 

On question, amendment agreed to. 



70 PATENTS AND DESIGNS BILL. 

On question, new clause after clause 49 agreed to. 

Clause 50, with drafting amendment, agreed to. 

In the schedule: 

Drafting amendment agreed to. 

Standing committee negatived. The report of amendments to be 
received on Monday next, and bill to be printed as amended. [No. 
211.] 

PATENTS AND DESIGNS (CONSOLIDATION BILL.) 

House in committee (according to order) . 

The Earl of Granard. My lords, I do not know whether it will 
be convenient to the house to move these amendments altogether. 
They are all in conformity with the existing law. Would that meet 
with the wishes of noble lords opposite ? 

The Marquis of Salisbury said that, having regard to the way in 
which business was done, he did not think it mattered much. 

Amendments moved en bloc, and agreed to. 

Standing committee negatived. The report of amendments to be 
received on Monday next. 

[Commons, August 26, 1907.] 

Amendments reported (according to order). 

The lord chancellor said there was a misprint in the bill, the word 
^'reasonable" occurring twice. He did not think it was necessary 
to do more than to tell the house, so that with the authority of the 
house they might have it corrected. 

Then (standing order No. XXXIX having been suspended) bill 
read 3^ and passed, and returned to the Commons. 

Amendments reported (according to order) . 

The Marquess of Salisbury said that this was a yet further example 
of the remarkable manner in which business was done in respect of 
this patents bill. One of the invariable rules in respect of consoli- 
dation bills was that they should be sent to be considered by a select 
committee; but this consolidation bill, involving matters of tre- 
mendous importance and interest, had never been considered by a 
select committee either of their lordships' house or of the House of 
Commons. It had been pushed through in a hocus-pocus manner, 
and amendments without the least possible kind of supervision were 
to be stuck in at the last moment altogether. He presumed that was 
the manner in which the Government put the amendments. He 
advised them to do so because there was no time to do it otherwise, 
but he desired to enter his protest against the manner in which the 
bill was being carried through. 

The Lord Chancellor. Will your lordships allow me to point 
out that I think the noble marquess on this occasion is a little mis- 
taken ? I do not think it is the case that every consolidation bill 
should go to a committee. On the contrary, consolidation bills are 
always treated in a quite exceptional way. They are taken on the 
faith of the officers and parliamentary draftsmen, and the minister 
is expected to see that they have been carefully considered, but, 
being consolidation bills, they do not affect more than the putting 
together of things Parliament has obviously already agreed to. 
That course has been adopted in regard to this bill. I will not deny, 



PATENTS AND DESIGNS BILL. 71 

if the noble marquess insists, that he is riglit al)()ut the select com- 
mittee. 

The Marquess of Salisbury. I only spoke according to the infor- 
mation that has been given me. I can not pretend to liave first-lumd 
knowledge of the subject. 

The Lord Chancellor. I will not aflirm any more than the noble 
marquess. Now let me explain what this bill is. It is proposed now 
to bring the bill which your lordships have just read a second time, 
and w^hich was amended in committee, into the consolidation bill, 
and there is not a single novel point in the whole bill. I have felt it 
my duty to inquire Avhether everything proper has been done. The 
parliamentary draftsmen have been carefully through the amend- 
ments to see that they are correct. They have also been checked by 
the clerks in the parliamentary oflice, and they have been examined 
by two of the comptroller's examiners. The bill is purely a consoli- 
dation bill, and I hope under these circumstances we shall be allowed 
to have a third reading. 

Amendments moved en bloc, and agreed to. 

Then (standing order No. XXXIX having been suspended), bill 
read 3^, with the amendments, and passed, and returned to the 

Commons. 

[Lords, August 27, 1907.] 

Lords amendments considered. 

The president of the board of trade (Mr. Lloyd-George, Carnarvon 
Burghs) said that most of these amendments were purely drafting 
amendments, and there were one or two of substance, but they were 
amendments which carried out things which he himself had promised 
before the bill had left that house. 

Lords amendments agreed to. 

Lords amendments considered. 

Mr. Lloyd -George said the amendments were considerable in num- 
ber and would take a long time to read. He would suggest, therefore, 
that they should be taken by the house en bloc. They had been most 
carefully considered and the Government were prepared to accept 
them. 

Lord Balcarres (Lancashire, Chorley) said he had not the slightest 
intention of opposing the right honorable gentleman's suggestion to 
take the mendments en bloc. He thought, however, upon the 
question that the amendments be considered he might be permitted 
to make some observations upon the methods which had been adopted 
by the Government to pass this bill. The house would recollect that 
w^ien they had finished passing the patents bill proper at between 
2 and 3 o'clock in the morning the consolidation bill was brought 
before them and passed, 20 clauses being taken at a time. They did 
not object to the bill going through, but they pointed out that the 
consolidation bill was one which ought to be considered b}^ a select 
committee. That course, however, was not followed, 3^et had the 
bill been introduced earlier in the session, as it ought to have been, 
it could then have been fully and properly considered by a committee. 
As it was, however, the House of Lords, having passed the patents 
bill, were called upon two or three minutes later to consider a con- 
solidation bill. There also, in that house, the bill was not going 
through the proper ordeal of a select committee, but the lords had 



72 PATENTS AND DESIGNS BILL. 



a^Cn-^u^ 



placed in it, he would not like to say how many, amendments, all of 
which had been agreed to in a very few minutes. However, he was 
quite prepared to accept the right honorable gentleman's statement 
that these amendments had been carefully considered by the Govern- 
ment, and he did not propose to object to their being taken en bloc, 
but at the same time he felt bound to point out that in neither house 
had the bill passed through stages through which it was desirable that 
such bills should pass. 

Lords amendments agreed to. 

[Commons, April 18, 1907.] 

Mr. MoND (Chester) . I beg to ask the president of the board of trade 
whether he can state whether clause 10 of the bill to amend the law 
relating to patents and designs is at variance with any treaty, agree- 
ment, or engagement with any foreign country or British possession; 
and, if so, what foreign countries or British possessions. 

Mr. Lloyd-George. I am advised that the provisions of the clause 
would not be at variance with any existing treaty, agreement, or 
arrangement. 

[Commons, April 15, 1907.] 

Lord R. Cecil (Marylebone, E.), I beg to ask the president of the 
board of trade whether he will cause to be printed and circulated, 
before the second reading of the patents bill, a memorandum, similar 
to the memoranda circulated on other Government bills this session, 
showing its effect on existing legislation. 

Mr. Lloyd-George. I have already made arrangements for a 
memorandum of the kind described by the noble lord to be printed 
and circulated before the second reading of the patents and designs 
bill. 

O 



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